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GIFT  OF 

DR.    !':ALBONE   '.V.    GRAHAi: 


Carnegie  Endowment  for  International  Peace 

DIVISION  OF  INTERNATIONAL  LAW 


THE   NEUTRALITY   LAWS 

OF   THE 

UNITED   STATES 

BY 

CHARLES  G.  FENWICK,  Ph.D. 

Of  the  Division  of  International  Law 


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PUBLISHED  BY  THE  ENDOWMENT 
WASHINGTON,  D.  C. 

1913. 


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INTRODUCTORY  NOTE. 

^  The  following  report  on  the  neutrality  laws  of  the  United  States 

t       was  prepared  by  Dr.  Charles  G.  Fenwick,  pursuant  to  a  resolution  of 

^      the  Board  of  Trustees  of  the  Carnegie  Endowment  for  International 

Peace  "that  the  Division  of  International  Law,  be,  and  it  is  hereby, 

directed  to  examine  and  report  to  the  Board  upon  the  neutrality  laws 

of  the  United  States,  and  to  suggest  in  their  report  improvements  tend- 

■^     ing  to  make  them  more  efficient." 

The  report  thus  prepared  was  submitted  to  and  approved  by  the 

"^     Board  of  Trustees  at  its  meeting  in  1913,  and  it  was  directed  that  the 

report  be  "published  and  sent  to  such  persons  and  authorities  as  may 

^     seem  appropriate  or  desirable,  and  that  their  suggestions  and  criticism 

^j     be  invited." 

It  will  be  observed  that  the  report  does  not  attempt  to  outline  and 
define  the  rights  and  duties  in  general  of  neutral  nations  as  they  exist 
in  international  law,  but  rather  to  show,  by  a  detailed  and  careful 
examination  of  the  statutes  of  the  United  States  and  of  their  official 
\^     interpretation,  the  compliance  of  this  country  with  its  conception  of 
^     neutral  rights  and  duties,  as  defined  by  the  law  of  nations.     An  intro- 
^     ductory  chapter  explains  the  character  and  scope  of  neutrality  laws 
in  general ;  a  second  chapter  sketches  the  history  and  development  of 
the  neutrality  laws  of  the  United  States ;  a  third  chapter  sets  forth 
the  authoritative  interpretation  of  the  present  neutrality  laws  as  de- 
termined by  judicial  construction;  a  fourth  chapter  deals  with  the 
limitations  of  the  neutrality  laws  of  the  United  States ;  and  the  report 
ends  with  an  appendix  containing  the  statutes,  resolutions,  and  prcc- 
■^^^ lamations  necessary  to  an  understanding  of  the  text. 

Particular  attention  is  called  to  the  amendments  suggested  by  Dr. 
Fenwick  as  calculated  to  make  the  neutrality  laws  more  efficient,  and 
to  the  draft  of  a  statute  to  effect  this  purpose. 

As  the  neutrality  laws  of  the  United  States  cannot  well  be  under- 
stood without  a  knowledge  of  the  circumstances  which  suggested  their 
enactment,  this  report  is  commended  not  merely  to  all  those  interested 
in  the  rights  and  duties  of  neutral  nations,  but  especially  to  those 
who  desire  in  the  future,  as  in  the  past,  that  the  policy  of  the  United 


iv  NEUTRALITY    LAWS    OF    THE    UNITED    STATES 

States   in  regard  to   neutral   rights  and  duties,  adopted  after  great 

thought  and  deliberation,  may  continue  to  serve  as  a  model  to  the 

nations. 

James  Brown  Scoti, 

Director  of  the  Division  of  International  Law  and  Secretary 

of  the  Carnegie  Endowment  for  International  Peace. 

Washington,  D.  C,  December  ii,  1913. 


NOTE 

Tl  reader  will  note  that  in  Chapters  III  and  IV  the  discussion  of 
the  interpretation  and  the  deficiencies  of  the  neutrality  laws  of  the 
United  States  is  based  upon  their  provisions  as  quoted  from  the  Re- 
vised Statutes  of  1878,  although  many  of  the  adjudged  cases  were 
anterior  to  that  date,  and  although  Congress  reenacted  the  neutrality 
laws  in  Sees.  9-18  of  the  Act  to  codify,  revise  and  amend  the  penal  laivs 
of  the  United  States,  approved  March  4,  1909  {U .  S.  Statutes  at  Large, 
vol.  35,  p.  1088).  The  differences  between  the  wording  of  the  Re- 
vised Statutes  on  the  one  hand  and  the  Act  of  1818  and  the  Code 
of  1909  on  the  other  being  very  slight,  this  method  of  treatment  has 
seemed  both  the  most  lucid  and  convenient. 

Attention  is  called  to  the  legislation  enacted  by  Congress  on  this 
subject  since  the  publication  of  this  volume,  viz.,  the  Act  of  May 
7,  1917,  and  Title  V  of  the  Act  of  June  15,  1917  (U.  S.  Statutes 
at  Large,  vol.  40,  pp.  39  and  221). 


THE   NEUTRALITY   LAWS 

OF   THE 

UNITED   STATES 


PREFACE. 

The  present  study  of  the  neutrahty  laws  of  the  United  States  has  a 
threefold  object  in  view:  to  show  the  traditional  policy  of  the  United 
States  with  respect  to  neutrality  laws,  to  state  the  precise  scope  of 
those  laws,  and  to  criticise  them  according  to  the  standard  of  interna- 
tional law.     As  an  introduction  to  the  study  it  was  thought  advisable 
to  show  the  position  which  neutrality  laws  hold  in  the  general  field  of 
international  law.     It  is  not  an  uncommon  error  to  confuse  municipal 
neutrality  laws  with  the  international  law  of  neutrality,  to  mistake  the 
legislation  by  which  a  state  gives  effect  to  its  international  obligations 
for    the    obligations    themselves.     This   error  has   been   particularly 
noticeable  in  the  recent  discussion  concerning  a  resolution  of  Congress 
empowering  the  President  to  prevent  the  export  of  arms  and  ammuni- 
tion from  the  United  States  to  Mexico.     The  historical  sketch  of  the 
several  neutrality  acts  passed  by  Congress,  and  of  the  neutrality  procla- 
mations issued  in  accordance  with  them,  is  presented  with  the  object 
of  showing  at  once  the  traditional  policy  of  the  United   States  in 
framing    legislation    to    meet   its    international    obligations,    and    the 
changes  in  the  law  which  have  been  brought  about  by  the  necessity  of 
adapting  it  to  existing  conditions.     The  succeeding  chapter  states  the 
authoritative  interpretation  of  the  present  neutrality  laws  as  deter- 
mined mainly  by  judicial,  and  in  part  by  executive,  construction.     In 
consideration  of  the  special  object  in  view  in  the  preparation  of  this 
study,  it  was  thought  advisable  to  separate  the  statement  of  the  actual 
restrictions  imposed  by  the  present  laws  from  the  criticism  of  the 
deficiencies  of  those  laws,  in  spite  of  the  fact  that  this  has  necessitated 
repetition  to  some  slight  extent.     Following  the  criticism  of  the  present 
neutrality  laws  is  a  draft  of  a  new  neutrality  code  embodying  the 
results  of  the  investigation,  and  introducing  amendments  intended  to 
meet  the  deficiencies  of  the  existing  law  and  to  bring  it  more  in  accord 
with  the  recognized  obligations  of  the  United  States. 

While  the  study  is  therefore,  by  its  purpose,  largely  technical  in 
character,  the  subject  with  which  it  deals  is  one  of  such  great  interest 
and  importance  as  to  commend  itself  to  the  attention  of  the  general 
public.  The  neutrality  laws  of  the  United  States  hold  a  significant 
place  in  the  legal  and  political  history  of  the  country;  controversies 


Vlll  NEUTRALITY   LAWS   OF  THE   UNITED   STATES 

have  ranged  around  them,  and  they  have  more  than  once  been  the 
subject  of  sharp  diplomatic  discussions,  while  not  a  few  of  the  impor- 
tant decisions  of  the  Supreme  Court  of  the  United  vStates  have  been 
based  upon  violations  of  the  several  neutrality  acts. 

Moreover,  with  the  exception  of  Great  Britain,  no  other  country  has 
enacted  similar  municipal  legislation  of  so  comprehensive  a  character, 
in  the  interest  of  enforcing  upon  its  citizens  and  others  within  its  ju- 
risdiction, the  observance  of  the  duties  of  neutrality.  Most  of  the  con- 
tinental countries  have  adopted  certain  general  provisions  against  for- 
eign enlistment  and  against  acts  which  may  compromise  the  neutrality 
of  the  state ;  but  they  have  not  thus  far  seen  the  need  of  enacting  penal 
legislation  of  the  definite  and  precise  character  of  that  adopted  by  the 
United  States  and  Great  Britain.  It  is  true  that  in  the  case  of  the 
latter  countries  special  circumstances  formed  the  proximate  occasion 
for  the  adoption  of  their  neutrality  acts ;  but,  on  the  other  hand,  it  can 
hardly  be  denied  that  municipal  neutrality  legislation,  as  a  means  of 
giving  effect  to  international  obligations,  has  been  greatly  neglected. 
In  consequence  of  the  rules  relating  to  the  rights  and  duties  of  neutral 
powers  in  land  and  maritime  war,  adopted  at  the  Second  Hague 
Conference  of  1907  (Conventions  V  and  XIII),  it  is  all  the  more 
imperative  that  the  states  of  the  world  should  amend  their  neutrality 
legislation  so  as  to  enable  them  to  meet  the  obligations  which  they 
have  thus  defined  for  themselves.  In  view  of  this  fact,  the  experience 
of  the  United  States  may  not  only  be  of  interest,  but  of  service  as 
well,  to  states  contemplating  the  adoption  of  new  or  the  amendment  of 
existing  neutrality  laws. 

C.  G.  F. 


CONTENTS 
CHAPTER  I 

CHARACTER  AND   SCOPE  OF   NEUTRALITY   LAWS 

PAGE 

Divisions   of   international   law    1 

Law  of  neutrality    2 

Growth  of  the  law  of  neutrality   3 

17th   century    4 

18th   century    5 

Analysis  of  neutral  duties   7 

Passive   duties    7 

Active    duties    9 

Neutrality  laws  in  contrast  with  international  law  of  neutrality  11 

CHAPTER  n 

HISTORY   AND  DEVELOPMENT   OF  THE   NEUTRALITY   LAWS   OF   THE 

UNITED    STATES 

Conditions  preceding  the  first   Neutrality  Act    15 

Act  of  June  5,  1794  26 

Supplementary  Act  of  June  14,  1797  30 

Conditions  calling  for  further  legislation  32 

Act  of  March  3,  1817   39 

Act  of  April  20,   1818   40 

Conditions  preceding  Act  of  March  10,  1838  41 

Act  of  March  10,  1838  43 

Attempted  revision  of  neutrality  laws  in  1866  48 

Reactionary  character  of  the  bill   49 

Its   failure    51 

Mexican  insurrection  and  shipments  of  arms  56 

Joint  resolution  of  March  14,  1912  58 

CHAPTER  HI 

THE    AUTHORITATIVE    INTERPRETATION    OF    THE    NEUTRALITY    LAWS  OF 

THE    UNITED    STATES 

Rev.  Stat.  Sec.  5281.     Accepting  a  foreign  commission 60 

Rev.  Stat.  Sec.  5282.     Enlisting  in   foreign   service   61 

Rev.  Stat.  Sec.  5283.    Arming  vessels   against   people  at   peace   with   the 

United  States    65 

Rev.  Stat.  Sec.  5284.     Arming    vessel    to    cruise    against    citizens    of    the 

United  States   78 

Rev.  Stat.  Sec.  5285.     Augmenting  force  of  foreign  vessel  of  war  79 


XU  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

PAGE 

Rev.  Stat.  Sec.  5286.     Military  expeditions  against  people   at  peace  with 

the  United  States    81 

Rev.  Stat.  Sec.  5287.     Enforcement  of  foregoing  provisions    88 

Rev.  Stat.  Sec.  5288.     Compelling  foreign  vessels  to  depart  93 

Rev.  Stat.  Sec.  5289.     Armed  vessels  to  give  bond  on  clearance 96 

Rev.  Stat.  Sec.  5290.     Detention  by  collectors  of  customs    97 

Rev.  Stat.  Sec.  5291.    Construction  of  this  Title 99 

CHAPTER  IV 

THE   DEFICIENCIES   OF   THE    NEUTRALITY   LAWS   OF   THE    UNITED    STATES 

Classification   of   unneutral    acts    103 

Acts  which  need  not  be  forbidden   103 

Trade  in  contraband  articles    103 

Exception  in  case  of  armed  vessels    107 

Summary  of   present   law    120 

Blockade    running    123 

Loans  of  money    124 

Subscriptions  of  money  and   expressions  of  opinion 125 

Enlistments  outside  jurisdiction  of  the  United  States 126 

Acts  which  should  be   forbidden    131 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5281    131 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5282  133 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5283   135 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5284   140 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5285   141 , 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5286  145 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5287   147 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5288  149 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5289   152 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5290  152 

Acts  falling  within  scope  of  Rev.  Stat.  Sec.  5291    155 

Acts  falling  within  scope  of  joint  resolution  of  March  14,  1912 158 

DRAFT   OF   AN    AMENDED    NEUTRALITY   ACT 160 

APPENDIX 

Hamilton's  instructions  to  the  collectors  of  customs    170 

Neutrality  proclamation   of   March  24,   1794    172 

Act  of  June  5,   1794 173 

Act  of  June  14,  1797  176 

Act  of  April  20,  1818 u 176 

Act  of   March   10,   1838 179 

Joint  resolution  of  April  22,  1898  182 

Proclamation  forbidding  export  of  arms,  etc.,  to  Dominican  Republic.  182 

Joint  resolution  of  March  14,  1912  183 

Proclamation  forbidding  export  of  arms,  etc.,  to  Mexico  183 

British  Foreign  Enlistment  Act  of  1819  184 

British  Foreign  Enlistment  Act  of  1870  191 


CHAPTER  I. 

THE  CHARACTER  AND  SCOPE  OF  NEUTRALITY  LAWS. 

International  law  deals  with  the  relations  between  states.  It  con-  Divisions  of 
sists  in  those  generally  accepted  rules  of  conduct  which  nations  con-  j"|^^"^*^°"^ 
sider  so  far  binding  upon  themselves  in  their  relations  with  one 
another  as  to  lead  them  actually  to  abide  by  them  in  their  general 
practice.  The  traditional  division  of  these  rules  by  writers  of  inter- 
national law  has  separated  them  into  two  general  classes,  those  dealing 
with  the  relations  of  states  in  time  of  peace,  and  those  regulating  the 
conduct  of  states  in  time  of  war.  The  rules  belonging  to  this  latter 
class  possess,  in  the  history  of  international  law,  a  far  more  important 
place  than  the  rules  prevailing  between  nations  at  peace.  The  reason 
for  this  apparently  unnatural  emphasis  upon  the  rules  of  war  is  evident 
when  we  consider  that,  until  within  modern  times,  nations  have  been 
much  more  ready  to  cut  the  Gordian  knot  of  disputed  rights  by  a 
resort  to  armed  force  than  to  discuss  amicably  the  justice  of  the  right 
in  question. 

But  even  in  their  resort  to  armed  force  as  the  arbiter  of  their  quar-  Law  of  war. 
rels,  civilized  nations  have  recognized  that  there  was  a  limit  to  the 
extent  to  which  that  force  might  be  applied.  If,  in  principle,  the 
object  of  war  is  to  overcome  the  opposition  of  one  who  refuses  to 
grant  us  our  rights,  and  if  war  is  a  means,  not  an  end,  if  it  is  entered 
upon  from  necessity,  not  from  choice,  it  follows  that  the  operations 
of  war  are  justified  only  in  so  far  as  they  tend  in  fact  towards  the 
attainment  of  that  object.  But  whether  this  principle  was  dimly  or 
clearly  present  to  the  conscience  of  warring  nations,  the  widespread 
misery,  both  on  the  part  of  the  combatants  themselves  and  on  the  part 
of  non-combatants,  attending  the  resort  to  armed  force  as  a  means 
of  obtaining  rights  and  redressing  wrongs,  forced  upon  civilized  na- 
tions a  recognition  of  the  necessity  of  limiting,  as  far  as  possible,  the 
accidental  suffering  caused  by  war,  if  the  inherent  and  inevitable 
suffering  could  not  be  avoided.  There  has  thus  grown  up  between 
nations  the  apparently  paradoxical  system  of  rules  called  the  "law  of 
war." 

From  a  scientific  point  of  view  the  rules  of  international  law  might 
more  properly  be   divided   into   the   rules   defining  the   fundamental 


NEUTRALITY  LAWS  OF  THE  UNITED   STATES 


Law  of  neutral- 
ity.    Divisions. 


Duty  of 
abstention. 


rights  and  duties  of  nations,  and  the  rules  relating  to  the  procedure 
adopted  by  nations  for  the  assertion  of  rights  and  the  redress  of 
wrongs.  The  former  division  would  embrace  the  old  "law  of  peace," 
the  latter  the  old  "law  of  war"  with  such  other  methods  of  procedure 
of  a  pacific  character  which  have  come  in  recent  years  to  commend 
themselves  to  the  moral  sense  of  civilized  nations.  Taken  thus,  war 
may  be  regarded  as  an  international  method  of  procedure  for  the 
enforcement  of  rights  and  for  the  redress  of  wrongs.  However 
improper  a  method  it  may  be  at  times  from  the  standpoint  of  justice 
and  morality,  international  law  recognizes  it  as  a  legal  means  of  co- 
ercing an  alleged  ofifender. 

In  thus  acknowledging  the  legality  of  war,  international  law  at  the 
same  time  recognizes  that  the  existence  of  war  not  only  affects  the 
rules  normally  prevailing  between  the  parties  to  the  conflict,  but  that 
it  imposes  new  duties  upon  other  states  not  themselves  involved  in  the 
war.  These  new  duties  imposed  upon  states  not  involved  in  the  war 
are  deducible  from  the  nature  of  the  remedy  resorted  to  by  the  parties 
to  the  conflict.  War  is  the  settlement  of  an  international  dispute 
on  the  basis  of  superior  physical  force.  It  is  evident  that  states  not 
parties  to  the  dispute  must  either  maintain  an  attitude  of  neutrality 
or  else  be  drawn  themselves  in  the  conflict.  Assuming,  then,  a  desire 
on  the  part  of  third  parties  to  keep  aloof  from  the  war,  certain  obliga- 
tions necessarily  devolve  upon  them.  These  obligations  are  based 
upon  a  two-fold  principle:  First,  that  neutrality  demands  an  entire 
abstinence  from  all  direct  participation  in  the  conflict ;  and  secondly, 
that  it  demands  an  attitude  of  absolute  impartiality  towards  the  bel- 
ligerents in  all  matters  not  connected,  or  only  indirectly  connected, 
with  the  war. 

With  regard  to  the  first  point  it  must  be  observed  that  to 
abstain  from  all  participation  in  the  conflict  is  something  more 
than  the  mere  impartial  treatment  of  the  contending  parties,  which 
would  not  be  contravened  by  giving  equal  help  to  both.  The  principle 
of  abstention  is  based  upon  a  recognition  that  while  it  may  be  theo- 
retically possible  to  give  equal  help  to  both  contending  parties,  it  is 
practically  impossible  to  do  so.  Assistance  of  a  certain  kind  to  one 
party  might  be  of  far  greater  help  to  him  than  similar  assistance 
might  be  to  the  other  party.  Moreover,  the  obligation  of  abstention 
from  participation  in  the  war  imposes  upon  the  neutral  state  active 
as  well  as  passive  duties.  It  is  not  merely  sufficient  for  the  neutral 
state  to  refrain  from  giving  help  to  either  of  the  parties  by  any  posi- 
tive acts  of  assistance  on  its  own  part,  but  it  must  take  active  steps  to 


CHARACTER  AND  SCOPE  OF  NEUTRALITY  LAWS  IN   GENERAL  6 

prevent  either  of  the  belligerent  parties  from  gaining  an  advantage 
over  the  other  by  making  use  of  the  territory  of  the  neutral  state,  and 
to  prevent  private  persons,  whether  aliens  or  its  own  citizens,  from 
cooperating  with  a  belligerent  in  the  use  of  neutral  territory  for  hostile 
purposes. 

With  regard  to  the  second  point,  it  must  be  observed  that  war  does  Duty  of 
not  interrupt,  in  principle,  the  previous  friendly  relations  between  i^ip^rtiahty. 
belligerent  and  neutral  states.  But  in  so  far  as  the  friendly  relations 
of  times  of  peace  incidentally  produce  effects  which  in  time  of  war 
would  amount  to  assistance  from  the  neutral  to  the  belligerent  state, 
they  must  necessarily  to  that  extent  be  interrupted.  There  are,  how- 
ever, certain  acts  of  friendliness  on  the  part  of  neutral  towards  bel- 
ligerent states,  such  as  the  furnishing  of  war-ships  with  limited  sup- 
plies of  food,  coal,  etc.,  which  are  permitted  in  spite  of  the  fact  that 
they  involve  a  certain  amount  of  indirect  assistance  to  the  belligerent. 
Just  where  the  line  is  to  be  drawn  between  direct  and  indirect  assist- 
ance, and  accordingly  just  what  acts  of  friendliness  are  still  permis- 
sible on  the  part  of  neutrals  towards  belligerents,  has  not  been  deter- 
mined by  any  principle  but  has  been  worked  out  synthetically  by  the 
practice  of  nations.  But  whatever  the  neutral  is  permitted  to  do,  it 
must  do  with  equal  readiness  for  both  belligerents ;  the  strictest  impar- 
tiality is  here  the  test  of  neutrality. 

It  will  not  be  assumed  that  the  two  fundamental  principles  of  Growth  of  law 
neutral  duty  just  defined  have  always  been  recognized  by  nations.  neutrality. 
Universally  as  they  are  accepted  to-day,  they  have  won  their  position 
in  the  body  of  international  law  only  after  centuries  of  dispute  between 
belligerents  and  neutrals.  The  history  of  the  development  of  the 
rights  as  well  as  of  the  duties  of  neutral  nations  forms  one  of  the  most 
striking  instances  of  the  growth  of  law  between  nations.  We  are  not 
here  concerned  with  the  rights  of  neutral  states  except  in  so  far  as 
they  are  connected  with  the  fulfilment  of  neutral  duties ;  it  is  merely 
sufficient  to  note  the  significant  fact  that  the  neutral  states  which  have 
been  most  energetic  in  the  assertion  of  the  rights  of  neutrality  have 
been  generally  those  most  ready  to  fulfill  its  duties.  A  brief  sketch  of 
the  growth  of  the  recognition  of  neutral  duties  will  be  here  in  place, 
in  so  far  as  it  is  necessary  to  throw  light  upon  the  meaning  of  the 
two  fundamental  principles  above  stated.^ 

^For  a  history  of  the  growth  of  the  law  of  neutrality  with  respect  to  neutral 
rights  as  well  as  neutral  duties,  see  Hall,  International  Law  (6th  ed.), 
571-587.  An  earlier  and  carefully  reasoned  chapter  of  the  same  work  dis- 
cusses the  growth  of  the  underlying  principles  of  neutrality,  71-81.  See  also 
Walker,  The  Science  of  International  Law,  374-526. 


4  NEUTRALITY  LAWS  OF  THE  UNITED   STATES 

17th  century.  As  late  as  the  year  1625  the  rights  and  duties  of  neutral  states  were 
so  imperfectly  defined  that  in  his  famous  treatise  on  the  Law  of  War 
and  Peace  Grotius  did  not  deem  it  necessary  to  consecrate  more  than 
a  brief  chapter  to  the  status  of  those  whom  he  described  by  the  ex- 
pressions qui  in  hello  medii  sunt;  qui  extra  helium  sunt  positi.  In  his 
statement  of  the  duties  of  those  who  are  at  peace  with  the  belligerent 
parties  he  shows  himself  so  far  dominated  by  the  customs  of  his  age 
that  he  takes  it  for  granted  that  the  neutral  state  should  pass  upon 
the  justice  of  the  war  in  progress,  and  modify  its  neutral  conduct 
accordingly.  "It  is,"  he  says,  "the  duty  of  neutrals  to  do  nothing 
which  may  strengthen  those  who  are  prosecuting  an  unjust  cause,  or 
which  may  impede  the  movements  of  him  who  is  carrying  on  a  just 
war.  .  .  .  But  if  the  cause  is  a  doubtful  one  they  must  manifest 
an  impartial  attitude  towards  both  sides,  in  permitting  them  to  pass 
through  the  country,  in  supplying  their  troops  with  provisions,  and  in 
not  relieving  the  besieged."^  It  is  evident  that  the  concept  of  a  legal 
status  of  neutrality,  in  which  a  neutral  state,  acknowledging  the  sov- 
ereignty and  equality  of  the  states  in  conflict,  regulates  its  conduct 
irrespective  of  its  sympathy  for  or  its  belief  in  the  justice  of  the  cause 
of  either  of  them,  had  not  yet  come  to  be  understood.  In  fact,  until 
the  close  of  the  seventeenth  century  the  greater  part  of  the  duties  of  a 
neutral  state  were  determined  not  by  fixed  international  custom  but  by 
treaties  between  individual  states,  by  which  each  state  sought  to  prevent 
third  parties  from  giving  help  to  the  enemy  in  the  event  of  a  possible 
war.^  How  little  the  principle  of  absolute  abstention  on  the  part  of 
neutrals  from  all  participation  in  the  war  was  recognized  may  be 
seen  in  the  fact  that  it  was  not  regarded  at  that  period  as  inconsistent 
with  neutrality  for  a  neutral  state  not  only  to  grant  an  impartial 
permission  to  both  belligerents  to  raise  troops  within  its  territory, 
but  to  grant  this  permission  to  one  belligerent,  while  refusing  it  to  the 
other,  in  cases  where  the  neutral  state  had,  prior  to  the  war,  entered 
into  a  treaty  stipulating  that  such  levies  might  be  raised.  As  for  the 
modern  duty  imposed  upon  neutral  states  of  actively  preventing  vio- 
lations of  their  sovereignty  by  the  belligerents  and  of  seeking  redress 
for  such  violations  after  they  have  taken  place,  powerful  belligerents 
were  so  in  the  habit  of  performing  acts  of  war  within  the  territory 

We  Jure  Belli  et  Pads,  lib.  Ill,  cap.  XVII,  3. 

2Hall  cites  a  number  of  such  treaties  ranging  in  date  from  the  treaty  be- 
tween England  and  Denmark  in  1465  down  to  the  treaty  between  the  same 
powers  in  1686.    Op.  Cit.,  572-573. 


CHARACTER  AND  SCOPE  OF   NEUTRALITY  LAWS  IN   GENERAL  0 

of  neutrals  that  there  was  little  thought  of  the  injured  belligerent 
holding  the  neutral  to  account  for  them.^ 

The  middle  of  the  eighteenth  century  marks  a  decided  growth  in  the  18th  century, 
recognition  of  the  rights  of  neutral  states,  but  it  was  not  until  the  ^^"^  • 
close  of  the  century  that  the  standard  of  neutral  duty  rose  appreciably 
higher.  As  regards  the  rights  of  neutral  states,  in  consequence  of  a 
better  recognition  of  the  principle  of  territorial  sovereignty  there  were 
fewer  instances  of  the  violation  of  the  sovereignty  of  neutral  states 
by  the  commission  of  hostilities  by  belligerents  within  neutral  terri- 
tory ;  and  we  find  Wolff  stating,  in  1749,  that  "no  one  may  raise  troops 
in  a  foreign  country  without  the  consent  of  the  sovereign ;  and  he  who 
presumes  to  do  so  violates  the  Law  of  Nations,  and  therefore  does  an 
injury  to  the  foreign  state."^  But  in  the  matter  of  neutral  duties  it 
was  still  possible,  in  1737,  for  a  writer  of  such  good  judgment  as 
Bynkershoek  to  think  that  "the  purchase  of  soldiers  among  a  friendly 
people  is  as  lawful  as  the  purchase  of  munitions  of  war,"^  and  that 
if  help  has  been  promised  by  a  state  to  an  ally,  and  the  latter  goes  to 
war  with  a  friendly  state,  the  neutral  state  must  stand  by  its  promise.* 
Vattel,  writing  in  1758,  qualified  his  general  statement  that  a  neutral 
state  must  give  no  help  to  either  party  by  the  condition,  "if  it  is  not 
bound  [by  treaty]  to  do  so,"  upon  which  he  comments  as  follows: 
"When  a  sovereign  furnishes  the  moderate  assistance  which  he  owes 
in  virtue  of  a  former  defensive  alliance,  he  does  not  become  a  party 
to  the  war:  accordingly,  he  may  acquit  himself  of  his  obligation  and 
maintain,  in  other  respects,  a  strict  neutrality ;"°  and  he  attempts  to 
justify  this  preference  of  one  belligerent  over  the  other  on  the  ground 
that  the  neutral  state  "might  have  reasons"  for  confiding  its  troops  to 
one  belligerent  rather  than  to  the  other.  Another  exception  to  the 
general  rule  that  a  neutral  must  give  no  help  to  either  party  is  made 
with  respect  to  loans  of  money.  Vattel  holds  that  the  practice  is  law- 
ful "so  long  as  it  appears  that  the  nation  is  lending  its  money  solely 
for  the  purpose  of  obtaining  interest,"  and  a  similar  discrimination, 
as  in  the  case  of  levies  of  troops,  in  favor  of  one  belligerent  over  the 

iHall  quotes  several  proclamations  of  neutral  states  in  the  17th  century  to 
prove  that,  in  spite  of  the  frequent  violations  of  neutral  sovereignty,  "the  right 
of  a  sovereign  to  forbid  and  to  resent  the  performance  of  acts  of  war  within 
his  lands  or  waters  was  theoretically  held  as  fully  then  as  now  to  be  inherent 
in  the  fact  of  sovereignty."  Op.  Cit.,  576. 

"^Jus  Gentium,  s.  754;  Phillimore,  International  Law,  III,  §CXLIV. 

^Quaestionum  Juris  Publici,  lib.  I,  cap.  XXII. 

*Ibid.  cap.  IX. 

^Le  Droit  des  Gens,  liv.  Ill,  cap.  VII,  §§104-105. 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Neutral   duties 
become  more 
definite. 


Other  is  justified  by  the  principle  that  a  nation  has  the  right  to  lend 
its  money  "where  it  thinks  it  has  good  security."^ 

But  putting  these  inconsistent  exceptions  aside  Vattel  is  to  be  cred- 
ited with  having  formulated  in  clear  terms  the  two  fundamental  prin- 
ciples of  neutral  duty:  First,  that  the  mere  impartial  treatment  of  the 
belligerent  parties  in  the  sense  of  giving  equal  help  to  both  is  not 
sufficient  to  comply  with  the  duties  of  neutrality.  A  nation  must 
abstain  from  helping  either  party ;  for,  as  Vattel  justly  observes,  "the 
same  number  of  troops,  the  same  quantity  of  arms,  munitions,  etc., 
furnished  under  different  circumstances,  do  not  amount  to  equivalent 
help."  Secondly,  in  all  matters  not  connected  with  the  war,  a  neutral 
state  must  not  refuse  to  one  of  the  belligerents  what  it  grants  to  the 
other.^ 

The  subsequent  history  of  the  law  of  neutrality  shows  us  an  in- 
creasingly better  understanding  of  the  force  of  the  two  principles 
formulated  by  Vattel,  and  of  their  proper  application  to  the  disputes 
arising  between  belligerents  and  neutrals.  Gradually  it  came  to  be 
generally  recognized  that  a  neglect  on  the  part  of  neutral  states  to 
prevent  the  arming  and  equipping  of  cruisers  in  their  ports  by  private 
persons,  in  the  interest  of  belligerents,  was  in  violation  of  the  duties 
of  neutrality.^  By  the  year  1788  we  find  Sweden  declaring  that  the 
justification  of  a  treaty  obligation,  offered  by  Denmark  in  explanation 
of  the  fact  that  certain  of  its  troops  were  acting  as  auxiliaries  of  Russia 
against  Sweden,  was  a  "doctrine  which  His  Swedish  Majesty  cannot 
altogether  reconcile  with  the  Law  of  Nations  and  the  rights  of  Sover- 
It  was  left  for  the  United  States,  in  1794,  by  the  enactment 


eigns 


"4 


of  municipal  legislation  for  the  better  fulfilment  of  its  neutral  duties, 
to  formulate  into  a  consistent  system  the  most  enlightened  usages, 
and  to  set  a  new  standard  of  the  obligations  incumbent  upon  the  status 
of  neutrality.^ 

Beit    it    is    evident    that    the    standard    set   by   the    United    States 
in    1794     could    not    be    expected    to    form    a    permanent    code    of 
neutrality.     It  was  a  statement  of  principle  as  applied  to  existing  cir- 
cumstances, and  was  necessarily  limited  to  the  continuance  of  those 

^Le  Droit  des  Gens,  liv.  Ill,  cap.  VII,  §110. 

nbid.  liv.  Ill,  cap.  VII,  §104. 

^Hall  refers  to  a  series  of  neutrality  edicts  issued  after  the  outbreak  of  the 
war  between  England  and  France  in  1778  as  illustrating  an  attempt  on  the  part 
of  certain  maritime  states  to   fulfill  their  duties  in  this  respect.     Op.  Cit.,  584, 

*The  declaration  is  quoted  in  full  by  Phillimore,  III,  §CXL. 

6The  character  and  effects  of  this  legislation  on  the  part  of  the  United  States 
will  be  treated  in  full  in  the  following  chapter. 


CHARACTER  AND  SCOPE  OF   NEUTRALITY  LAWS  IN  GENERAL  / 

circumstances,  or  similar  ones.  In  the  course  of  time  new  conditions 
arose  which  required  a  more  careful  analysis  of  the  general  principles 
of  neutral  duty,  in  order  to  secure  a  more  consistent  application  of 
them  to  the  actual  situation.  The  consideration  of  these  new  deduc- 
tions from  the  fundamental  principles  of  neutrality,  and  of  the  dif- 
ferent rules  which  have  been  adopted  in  consequence,  will  find  its 
proper  place  in  a  subsequent  chapter. 

In  the  light  of  the  fundamental  principles  determining  the  status  of   Analysis  of 

neutrality  we  may  proceed  to  analyse  the  ways  in  which  a  neutral  "^"trai  duties. 
.        .        .  .  Passive   duties, 

state  may  act  in  violation  of  it.  It  was  stated  above  that  the  obliga- 
tion of  abstaining  from  all  participation  in  a  waT  imposes  upon  neutral 
states  both  active  and  passive  duties.  The  passive  duties  are  ful- 
filled by  the  merely  negative  attitude  of  non-intervention  in  the  war 
on  the  part  of  the  neutral  state.  Here  we  immediately  meet  with  the 
distinction  between  acts  of  a  state  in  that  sovereign  and  corporate 
capacity  in  which  it  maintains  public  relations  with  other  states  and 
acts  of  the  citizens  or  subjects  of  the  state,  who  as  a  body  constitute 
the  state,  but  whose  actions  as  individuals  cannot  be  imputed  to  the 
governmental  organs  of  the  state.  Setting  aside  for  the  moment  the 
acts  of  citizens  of  the  state,  and  considering  only  the  acts  of  the 
state  in  its  corporate  capacity,  it  is  the  accepted  rule  that  a  state 
cannot  furnish  aid,  whether  directly  or  indirectly,  to  either  of  the 
parties  at  war.  How  far  this  general  rule  must  be  modified,  with 
respect  to  indirect  aid,  by  the  continuance  by  the  neutral  state  towards 
the  belligerents  of  certain  acts  of  comity  shown  by  all  states  in  time 
of  peace,  is  still  one  of  the  debated  questions  of  international  law.  A 
fairly  satisfactory  compromise  was  reached  by  the  Powers  at  the 
Second  Hague  Conference  by  the  adoption  of  rules  fixing  certain  limi- 
tations upon  the  asylum  which  may  be  granted  to  belligerent  war-ships 
in  neutral  ports,  and  defining  in  fairly  exact  terms  the  amount  of 
supplies  and  fuel  which  may  be  shipped  in  neutral  ports,  and  the  extent 
to  which  repairs  may  be  carried  out  therein.^  In  so  far  as  these  acts 
of  courtesy,  which  may  under  certain  circumstances  enable  a  belliger- 
ent to  resume  hostilities  and  therefore  constitute  indirect  assistance 
to  him,  are  impartially  shown  to  both  belligerents,  they  cannot  be  said 
to  constitute  an  interference  by  the  neutral  in  the  war. 

Passing  from  the  consideration  of  acts  of  a  state  in  its  corporate  Acts  of  individ- 
capacity  to  acts  of  individual  citizens  or  subjects  of  the  state,  we  find  "^'^  excepted. 
a  different  rule  applicable  to  them.     It  is  clear  that  however  much 

iSee  below,  pp.  143-145. 


8 


NEUTRALITY   LAWS  OF  THE   UNITED   STATES 


Corresponding- 
right   of   bellig- 
erents. 


the  state  itself  may  desire  to  maintain  an  attitude  of  non-interference 
in  a  foreign  war,  it  cannot  exercise  such  an  effective  control  over  its 
citizens  as  to  prevent  them,  as  individuals,  from  giving  direct  or  indi- 
rect assistance  to  either  of  the  belligerents.  In  the  first  place,  the 
jurisdiction  of  a  state  is  limited  to  its  own  dominions,^  and  it  would 
not  have  the  right,  even  if  it  had  the  power,  to  exercise  a  control  over 
the  acts  of  its  subjects  in  other  countries.  Hence,  a  neutral  state 
cannot  be  held  accountable  by  a  belligerent  even  for  acts  of  direct 
hostility  committed  by  its  citizens  against  the  belligerent,  provided 
those  acts  do  not  take  their  inception  upon  the  territory  of  the  neutral 
state.  In  the  second  place,  even  within  their  own  dominions,  where 
they  are  supposed  to  exercise  a  certain  measure  of  control  over  the 
acts  of  their  subjects,  neutral  states  have  been  unwilling  to  restrict 
the  ordinary  commercial  undertakings  of  their  citizens  merely  because 
those  undertakings  happen,  in  time  of  war  between  two  foreign  coun- 
tries, to  result  in  direct  or  indirect  assistance  being  given  to  one  of 
the  parties  to  the  disadvantage  of  the  other.  A  statement  of  Jefferson 
has  been  frequently  quoted  as  illustrating  the  position  taken  by  neutral 
states  on  this  subject.  In  a  letter  to  the  French  minister,  on  May  15, 
1793,  Jefferson  said:  "We  have  answered  [to  Great  Britain],  that 
our  citizens  have  always  been  free  to  make,  vend,  and  export  arms ; 
that  it  is  the  constant  occupation  and  livelihood  of  some  of  them. 
To  suppress  their  callings,  the  only  means,  perhaps,  of  their  sub- 
sistence, because  a  war  exists  in  foreign  and  distant  countries,  in  which 
we  have  no  concern,  would  scarcely  be  expected.  It  would  be  hard  in 
principle,  and  impossible  in  practice.  The  law  of  nations,  therefore, 
respecting  the  rights  of  those  at  peace,  has  not  required  from  them 
such  an  internal  derangement  in  their  occupations.  It  is  satisfied  with 
the  external  penalty  pronounced  in  the  President's  proclamation,  that 
of  confiscation  of  such  portion  of  these  arms  as  shall  fall  into  the 
hand^  of  any  of  the  belligerent  Powers  on  their  way  to  the  ports  of 
their  enemies.  To  this  penalty  our  citizens  are  warned  that  they 
will  be  abandoned,  and  that  the  purchases  of  arms  here  may  work 
no  inequality  between  the  parties  at  war,  the  liberty  to  make  them  will 
be  enjoyed  equally  by  both."- 

The  latter  part  of  Jefferson's  remarks  shows  that  while  on  the 
one  hand   neutral  states  have  successfully  vindicated  their  claim  to  be 

iThe  jurisdiction  of  a  state  over  its  merchant  vessels  on  the  high  seas  is  of 
too  limited  a  character  to  constitute  an  exception  to  the  principle,  in  so  far  as 
responsibility  for  acts  committed  by  such  vessels  is  concerned. 

Mot.  State  Papers,  For.  Rel,  I,  147. 


CHARACTER  AND  SCOPE  OF  NEUTRALITY  LAWS  IN   GENERAL  y 

released  from  the  duty  of  interfering  with  the  ordinary  commercial 
avocations  of  their  citizens,  on  the  other  hand  belligerent  states  have 
obtained  the  recognition  of  their  paramount  claim  to  restrict  neutral 
commerce  when  direct  or  indirect  assistance  might  result  to  the  enemy 
therefrom.  It  is  clear  that  a  large  part  of  the  commerce  which  would 
normally  be  carried  on  between  a  neutral  state  and  a  belligerent  state, 
if  the  latter  were  at  peace,  may  prove  a  serious  obstacle  to  the  other 
belligerent  in  the  conduct  of  military  operations.  Supplies  of  muni- 
tions of  war,  and  even  supplies  of  food,  whatever  be  the  mercantile 
basis  upon  which  they  are  furnished  by  a  neutral  citizen  to  the  army 
or  navy  of  a  belligerent,  are  none  the  less  embarrassing  to  the  other 
belligerent;  and  since  neutral  states  have  been  unwilling  to  assume  the 
obligation  of  preventing  such  supplies  from  being  given,  whether  from 
a  recognition  of  their  own  inability  to  meet  the  situation  or  from  an 
unwillingness  to  impose  an  undue  burden  upon  their  citizens,  the  bel- 
ligerent has  been  left  to  apply  the  necessary  remedy.^  It  thus  happens 
that  a  certain  part  of  the  trade  of  neutral  citizens  with  the  belligerents, 
while  not  forbidden  by  the  municipal  law  of  their  own  state,  is  subject 
to  the  penalty  of  capture  and  confiscation  by  the  injured  belligerent. 
The  circumstances  under  which  this  right  of  capture  and  confiscation 
may  be  exercised  by  a  belligerent  have  been  a  traditional  subject  of 
dispute  between  belligerent  and  neutral  states.  For  while  belligerent 
states  have  been  left  free  to  deal  directly  with  the  offending  neutral 
citizen,  neutral  states  have  been  vigilant  to  see  that  the  belligerent  does 
not  act  arbitrarily  in  enforcing  his  rights. 

The  active  duties  of  a  neutral  state  are  deducible  from  the  principle  Active  duties, 
that  if  a  nation  cannot  give  help  to  the  belligerents  without  com-  ^"^  regard  to- 
promising  its  neutrality,  it  must  prevent  them  or  persons  in  their 
interest  from  making  any  use  of  its  territory  which  would  give  one 
of  the  belligerents  an  advantage  over  the  other.  Behind  this  duty  of 
preventing  any  use  of  its  territory  in  favor  of  either  belligerent  stands 
the  sovereign  right  of  a  state  over  the  domain  subject  to  its  jurisdic- 
tion. But  this  right  is  at  the  same  time  the  source  of  its  responsi- 
bility. It  follows  therefore  that  in  time  of  war  between  two  foreign 
countries  a  neutral  state  must  actively  exert  certain  rights  which  lie 
more  or  less  dormant  in  time  of  peace.  The  neutrality  of  a  state 
would  with  reason  be  regarded  as  fraudulent  if,  while  professing  an 
attitude  of  non-interference  in  the  war,  it  should  permit  any  use  to 
be  made  of  its  territory  for  hostile  purposes.     The  belligerents  cannot 

iHall.  Int.  Law.  75. 


10 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


1.  Acts  of  the 
belligerents 
themselves ; 


2.  Acts  of  indi- 
viduals in  their 
interest. 


be  allowed  to  commit  any  act  of  war  against  each  other  within  the 
jurisdiction  of  the  neutral,  nor  may  they  make  preparations  for  war 
therein,  nor  make  the  neutral  territory  a  starting  point  for  hostile 
expeditions  or  a  base  of  military  or  naval  operations. 

But  the  neutral  state  must  not  only  prevent  belligerents  from  com- 
promising its  neutrality  by  acts  committed  within  its  jurisdiction;  it 
must  also  prevent  private  persons,  whether  aliens  or  its  own  citizens^ 
from  assisting  in  the  perpetration  of  such  violations  of  its  sovereignty. 
Here  we  are  immediately  confronted  with  the  distinction  which  will 
lead  us  to  an  understanding  of  the  character  and  scope  of  what  are 
called  "neutrality  laws."  With  respect  to  acts  committed  by  the  bel- 
ligerents themselves  in  violation  of  neutral  territory,  it  is  evident  that 
the  neutral  state,  while  standing  responsible  to  the  injured  belligerent 
for  such  violations  of  its  sovereignty,  cannot  proceed  to  punish  the 
offenders  by  reason  of  the  fact  that  the  public  vessels  of  a  belligerent 
are  not  subject  to  the  jurisdiction  of  the  neutral  state  even  when  within 
its  territorial  waters,  nor  are  the  officers  in  command  of  the  armed 
forces  of  a  belligerent  state,  nor  the  members  constituting  those  forces, 
amenable  to  the  civil  or  criminal  jurisdiction  of  the  neutral  state.^ 
All  that  the  neutral  state  can  do  is  to  make  complaint  through  diplo- 
matic channels  and  to  obtain  redress  directly  from  the  state  in  whose 
service  the  offenders  have  acted.- 

But  it  is  otherwise  with  respect  to  the  acts  of  private  individuals 
who  attempt  to  cooperate  with  a  belligerent  in  violating  the  sover- 
eignty of  the  neutral  state.  Here  the  neutral  state  is  free  to  take 
whatever  steps  it  pleases  to  prevent  such  individuals  from  compromi- 
sing its  neutrality.  Accordingly,  it  may  pass  laws  defining  the  acts 
which  it  regards  as  compromising  its  neutrality  and  providing  punish- 
ment for  the  commission  of  them.  The  acts  must,  of  course,  be 
committed  within  the  jurisdiction  of  the  neutral  state,  for  it  is  only 
over  such  acts  that  the  state  is  supposed  to  have  control.  Beyond  the 
jurisdiction  of  the  state  its  citizens  may  commit  hostile  acts  against  a 
belligerent  without  consequent  responsibility  in  international  law  de- 
volving upon  the  neutral  state.     The  remedy  of  the  belligerent  in  this 

lAn  exception  to  this  rule,  in  cases  where  individual  officers  or  members  of 
a  foreign  army  or  navy  become  guilty  of  crimes  committed  independently  of 
their  official  position,  does  not  affect  the  principle  involved. 

2The  neutral  state  can,  however,  take  direct  action  against  the  officers  in  such 
cases  to  the  extent  of  refusing  to  grant  the  asylum  which  it  might  otherwise 
give  to  the  offending  vessel  or  army,  and  of  refusing  to  recognize,  in  so  far 
as  they  may  come  within  its  jurisdiction,  the  legality  of  property  rights  acquired 
in  consequence  of  a  violation  of  its  sovereignty. 


CHARACTER  AND  SCOPE  OF  NEUTRALITY  LAWS  IN  GENERAL  11 

case  is  upon  the  individuals  personally  who,  by  their  own  act,  have 
forfeited  the  protection  of  their  state.  An  exception  to  the  re- 
sponsibility of  a  neutral  state  for  acts  committed  within  its  jurisdic- 
tion is  to  be  found  in  the  general  admission  that  no  state  can  exercise 
so  extensive  and  thorough  a  supervision  over  what  is  done  within  its 
territory  as  to  prevent  the  commission  of  carefully  concealed  acts. 
A  further  exception  is  that  the  jurisdiction  ordinarily  exercised  by  a 
nation  over  its  merchant  vessels  on  the  seas  does  not  impose  upon  it 
the  obligation  of  punishing  hostile  acts  committed  by  such  vessels. 

Legislation  of  this  character,  which  is  enacted  by  a  state  to  prevent  Neutrality  laws, 
individuals  within  its  jurisdiction  from  compromising  the  neutrality  ^"^''"  '^"^'"^cter. 
of  the  state  during  a  war  between  two  foreign  powers,  is  known  in 
the  United  States  as  a  "neutrality  act,"^  and  the  provisions  of  such 
an  act  may  be  called  "neutrality  laws."  Neutrality  laws  are  thus 
purely  domestic  regulations  and  form  no  part  of  the  body  of  interna- 
tional law.^  In  point  of  comprehensiveness  they  represent  the  extent 
to  which  the  state  considers  it  necessary  to  adopt  penal  measures  to 
effectively  prevent  persons  within  its  jurisdiction  from  cooperating 
with  a  belligerent  in  the  use  of  its  neutral  territory  for  hostile  pur- 
poses. In  this  connection  it  matters  not  whether  the  individuals  who 
render  such  assistance  to  a  belligerent  do  so  from  feelings  of  hostility 
towards  the  other  belligerent,  or  merely  from  commercial  motives; 
it  is  the  act  itself  which  the  injured  belligerent  will  properly  complain 
of,  not  the  motive  with  which  the  act  is  done. 

Such  being  the  character  of  neutrality  laws,  we  may  now  inquire  Their  proper 
into  their  proper  scope.  Inasmuch  as  neutrality  laws  are  municipal  ^^°^^- 
in  character  and  are  binding  only  within  the  jurisdiction  of  the  state 
enacting  them,  they  may  be  looked  upon  as  embodying  the  concept  of 
international  duty  as  understood  by  the  individual  state,  together  with 
such  additional  restrictions  as  the  state  may  choose  to  impose  upon 
its  citizens  from  motives  of  policy.  Whether  the  state  has  under- 
stood its  duty  correctly  or  not  is  a  further  question.  Accordingly,  in 
some  cases  neutrality  laws  may  go  beyond  the  requirements  of  the 
international  obligations  of  the  state  by  restricting  the  action  of  its 

^English  writers,  in  referring  to  such  legislation,  generally  employ  the  term 
"Foreign  Enlistment  Act,"  owing  to  the  fact  that  the  first  British  act  for  the 
purpose  of  fulfilling  the  obligations  of  Great  Britian  as  a  neutral  was  based, 
to  some  extent,  upon  earlier  British  acts  for  the  prevention  of  the  enlistment 
of  British  subjects  in  foreign  armies. 

2It  is  important  to  observe  the  distinction  between  "neutrality  laws"  and  the 
"law  (or  laws)  of  neutrality."  The  latter  term  should  be  confined  to  the  inter- 
national law  covering  the  whole  field  of  the  relations  between  belligerents  and 
neutrals. 


12 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


If  in  excess  of  in- 
ternational   law, 
no    resulting 
obligation. 


citizens  to  a  greater  extent  than  international  law  demands.  Such 
excess  of  legislation  should  not,  in  principle,  increase  the  obligations  of 
the  neutral  state  from  the  point  of  view  of  international  law,  so  long 
as  it  is  enforced  in  favor  of  both  belligerents  equally.  There  is  some 
danger,  however,  lest  the  municipal  laws  of  a  state  be  regarded 
as  defining  the  standard  according  to  which  foreign  nations  may 
hold  that  state  accountable  for  alleged  breaches  of  neutrality.^  In  the 
Case  of  the  United  States,  presented  to  the  Tribunal  of  Arbitration 
at  Geneva,  it  was  argued  by  the  United  States  that  "Great  Britain  was 
bound  to  perform  all  the  duties  of  a  neutral  towards  the  United  States 
which  are  indicated  in  this  statute  [The  British  Foreign  Enlistment 
Act  of  1819]."-  To  this  it  was  replied  in  the  British  Counter  Case, 
first,  that  even  on  the  assumption  that  municipal  laws  of  that  character 
were  founded  upon  conceptions  of  international  obligation,  the  state 
should  still  be  judged  by  the  actual  law  of  nations  and  not  by  its 
conception  of  that  law,  and  secondly,  that  the  assumption  was  not  a 
true  one,  since  municipal  laws,  being  enacted  primarily  to  secure  the 
interests  of  the  state  itself,  may  frequently  prohibit,  for  reasons  of 
expediency,  acts  not  prohibited  by  the  law  of  nations.^  However,  the 
danger  of  being  held  accountable  for  its  own  conception  of  neutral 
duty  would  appear  to  be  more  than  counterbalanced  by  the  advantages 
to  a  state  of  pursuing  a  liberal  policy  in  the  matter  of  neutral  duties, 
especially  in  cases  where  the  principle  of  responsibility  is  clear,  but 
where  the  application  of  the  principle  to  concrete  circumstances  is  not 
capable  of  being,  or  has  not  been,  fixed  by  international  practice.* 

iHall  lays  much  stress  upon  this  danger,  pointing  out  that  if  a  law  has  been 
administered  for  some  time  by  the  courts  of  a  state,  and  insensibly  becomes  to 
the  majority  of  the  people  their  standard  of  right,  "a  tendency  will  in  time  grow 
up  to  act  according  to  its  provisions  irrespectively  of  the  obligations  which  it 
imposes.  So  long  also  as  the  law  is  administered  at  all,  foreign  nations  will 
each  expect  to  reap  the  full  benefit  which  has  accrued  to  another  from  its  opera- 
tion; and  any  failure  on  the  part  of  the  neutral  government  to  make  use  of  its 
powers  gives  a  ground  for  suspecting  unfriendliness,  which  the  belligerent  can- 
not be  expected  in  the  heat  of  war  to  estimate  at  its  true  value."  Op.  Cit., 
608,  note. 

^Papers  Relating  to  the  Treaty  of  Washington,  I,  48. 

^Ihid.  Ill,  210.  In  addition,  reference  may  be  made  to  the  suggestion  of 
Hall,  that  "it  may  be  more  convenient  to  discourage  the  inception  of  acts, 
which  would  only  in  the  later  stage  become  international  wrongs,  than  to  deal 
with  them  when  ripe."     Op.  Cit.,  608,  note. 

4It  was  upon  this  principle  that  the  British  Neutrality  Laws  Cornmission  of 
1867  framed  the  report  which  formed  the  basis  of  the  Foreign  Enlistment  Act 
of  1870.  "In  making  the  foregoing  recommendations,"  the  Commissioners  said, 
"we  have  not  felt  ourselves  bound  to  consider  whether  we  were  exceeding  what 
could  actually  be  required  by  International  Law,  but  we  have  no  hesitation  in 
stating  our  opinion  that  if  those  recommendations  should  be  adopted,  the 
Municipal  Law  of  this  realm  available  for  the  enforcement  of  neutrality  will 


\ 


CHARACTER  AND  SCOPE  OF  NEUTRALITY  LAWS  IN   GENERAL  13 

Accordingly,  while  a  state  will  naturally  seek,  in  framing  its  neutrality 
code,  to  conform  to  the  obligations  of  international  law,  it  may  find  it 
expedient,  especially  where  it  has  particular  reasons  for  maintaining 
an  unassailable  position  of  neutrality,  to  make  its  municipal  laws  more 
stringent  than  is  required  by  a  faithful  compliance  with  interna- 
tional law. 

Just  as  the  municipal  laws  of  a  state  may  exceed  the  actual  require-  If  narrower,  no 
ments  of  international  law,  so,  on  the  other  hand,  they  may  be  nar-  obTigat?on° 
rower  and  less  comprehensive  than  those  requirements.  In  such  cases 
the  neutral  state  is,  of  course,  not  released  from  responsibility  for 
acts  committed  by  its  citizens  or  others  within  its  jurisdiction,  by 
which  its  neutrality  is  compromised.  This  point  was  forcibly  urged 
by  the  United  States  before  the  Geneva  Arbitration  Tribunal  in  the 
following  terms : 

It  must  be  borne  in  mind,  when  considering  the  municipal  laws 
of  Great  Britain,  that,  whether  effective  or  deficient,  they  are  but 
machinery  to  enable  the  Government  to  perform  the  international 
duties  which  they  recognize,  or  which  may  be  incumbent  upon  it 
from  its  position  in  the  family  of  nations.  The  obligation  of  a 
neutral  state  to  prevent  the  violation  of  the  neutrality  of  its  soil 
is  independent  of  all  interior  or  local  law.  The  municipal  law 
may  and  ought  to  recognize  that  obligation ;  but  it  can  neither 
create  nor  destroy  it,  for  it  is  an  obligation  resulting  directly 
from  International  Law,  which  forbids  the  use  of  neutral  terri- 
tory for  hostile  purpose.  The  local  law,  indeed,  may  justly  be 
regarded  as  evidence,  as  far  as  it  goes,  of  the  nation's  estimate 
of  its  international  duties;  but  it  is  not  to  be  taken  as  the  limit 
of  those  obligations  in  the  eye  of  the  law  of  nations.^  / 

To  sum  up,  we  find  that  the  basic  principle  of  neutrality,  by  which  a  Summary, 
neutral  state  is  bound  to  refrain  from  interfering  in  a  war  between 
two  powers  at  peace  with  the  neutral  state,  imposes  both  active  and 
passive  duties.  The  passive  duties  are  fulfilled  if  the  neutral  state 
faithfully  refrains,  in  its  corporate  capacity,  from  giving  either  direct 
or  indirect  assistance  to  either  belligerent,  with  the  exception  that  it 
may  continue  to  render  certain  of  the  courtesies  shown  in  time  of 
peace,  provided  it  render  them  impartially  to  both  belligerents.  The 
active  duties  require  the  neutral  state  to  take  measures  to  prevent  any 

^Papers  Relating  to  the  Treaty  of  Washington,  I,  47. 

derive  increased  efficiency,  and  will,  so  far  as  any  defects  therein  have  attracted 
our  notice,  have  been  brought  into  full  conformity  with  Your  Majesty's  inter- 
national obligations."  Report  of  the  British  Neutrality  Laws  Commission,  No. 
69. 


14  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

use  of  its  territory  for  hostile  purposes.  If  the  belHgerents  them- 
selves are  the  guilty  parties  in  such  violations  of  neutral  territory,  the 
neutral  state  must  obtain  redress  from  them  through  diplomatic  chan- 
nels. If  private  individuals,  whether  citizens  of  the  neutral  state  or 
aliens,  are  the  guilty  parties,  by  attempting  to  assist  either  belligerent 
in  making  unlawful  use  of  neutral  territory,  the  neutral  state  must 
make  every  reasonable  effort  to  thwart  their  plans,  and  must  inflict 
appropriate  penalties  where  the  acts  have  been  committed.  The  laws 
which  the  neutral  state  may  make  for  this  purpose  are  called  "neu- 
trality laws."  They  define  the  acts  which  the  neutral  state  believes 
will  compromise  its  neutrality,  and  provide  the  means  for  prosecuting 
and  punishing  those  who  commit  such  acts.  They  are  strictly  do- 
mestic laws  and  have  no  direct  international  effect.  They  may  or 
may  not  conform  by  their  terms  to  the  requirements  of  the  interna- 
tional obligations  devolving  upon  the  state,  which  continue  the  same 
whatever  be  the  character  of  the  legislation  which  each  state  may 
adopt  to  enable  itself  to  comply  with  them.  Inasmuch  as  they  do  not 
apply  to  the  belligerents  themselves  directly,  they  must  be  supple- 
mented, when  the  occasion  arises,  by  instructions  to  the  proper  officers 
of  the  state,  pointing  out  the  restrictions  to  be  placed  upon  the  grant 
of  asylum  to  belligerent  vessels  in  the  ports  of  the  neutral  state. 
These  administrative  instructions,  being  of  a  temporary  character,  are 
generally  not  made  part  of  a  permanent  neutrality  act.  In  the  United 
States,  where  the  executive  department  is  jjnable  to  make  use  of  the 
military  and  naval  forces  of  the  state  except  as  authorized  by  Con- 
gress, it  is  customary  to  include  among  the  provisions  of  neutrality 
acts  a  grant  of  power  to  the  president  to  call  the  armed  forces  of  the 
country  to  his  aid  when  necessary  to  vindicate  the  neutrality  of  the 
United  States. 


CHAPTER  II. 

THE  HISTORY  AND  DEVELOPMENT  OF  THE  NEUTRALITY 
LAWS  OF  THE  UNITED  STATES. 

The  Neutrality  Act  passed  by  the  Congress  of  the  United  States  Neutral  policy 
on  June  5,  1794,  marks  an  epoch  in  the  history  of  the  relations  between  °^  *^^  United 
belligerent  and  neutral  nations.  It  was  the  result  of  a  distinct  policy 
adopted  by  the  United  States  in  its  relations  to  the  states  of  Europe. 
When  the  thirteen  colonies  succeeded  in  establishing  their  independ- 
ence they  found  themselves  in  an  unique  position.  They  stood  forth 
as  the  single  independent  state  in  the  new  world ;  and  although  they 
were  surrounded  on  all  sides  by  the  colonies  of  European  states,  they 
were  separated  from  the  actual  centers  of  European  domination  by 
the  formidable  barrier  of  an  ocean.  It  was  but  natural,  therefore, 
that  they  should  adopt  a  policy  of  detachriient  from  the  political 
alliances  by  which  the  balance  of  power  was  being  maintained  in 
Europe.  Their  geographical  position  enabled  them  to  do  so,  and 
their  political  principles  put  them  out  of  sympathy  with  the  system 
of  aggression  on  the  one  hand,  and  of  self-defense  on  the  other,  which 
kept  Europe  in  the  state  of  an  armed  camp.  This  policy  of  detach- 
ment from  the  political  system  of  Europe  found  a  strong  advocate  in 
President  Washington.  In  his  farewell  address,  delivered  September 
17,  1796,  he  sums  up  the  principles  which  guided  him  throughout  his 
administration : 

The  great  rule  of  conduct  for  us,  in  regard  to  foreign  nations,  is, 
in  extending  our  commercial  relations,  to  have  with  them  as  little 
political  connection  as  possible.  So  far  as  we  have  already 
formed  engagements,  let  them  be  fulfilled  with  perfect  good  faith. 
Here  let  us  stop. 

Europe  has  a  set  of  primary  interests,  which  to  us  have  none, 
or  a  very  remote  relation.  Hence  she  must  be  engaged  in  fre- 
quent controversies,  the  causes  of  which  are  essentially  foreign 
to  our  concerns.  Hence,  therefore,  it  must  be  unwise  in  us  to 
implicate  ourselves,  by  artificial  ties,  in  the  ordinary  vicissitudes 
of  her  politics,  or  the  ordinary  combinations  and  collisions  of 
her  friendships  or  enmities.^ 

\4m.  State  Papers.  For.  Rel..  I.  37. 


16 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Treaty    obligations 
towards  France. 


Sympathy  with 
French   Revo- 
lution. 


It  was  the  war  of  1793  between  France  and  the  Allied  Powers  which 
gave  definite  form  to  the  policy  of  the  United  States,  and  led  to  the 
passage  of  the  Neutrality  Act  in  the  following  year.  During  the  dark 
hours  of  the  American  Revolution  the  colonies  had  accepted  aid  from 
France  at  the  price  of  an  alliance  by  which  the  United  States  guaran- 
teed to  France  for  all  time  "the  present  possessions  of  the  Crown  of 
France  in  America."  A  Treaty  of  Amity  and  Commerce,  concluded 
at  the  same  time  [February  6,  1778],  bound  the  United  States  to  admit 
into  its  ports  French  ships  with  their  prizes  of  war,  and  at  the  same 
time  to  exclude  from  its  ports  the  ships  of  war  of  other  nations  when 
carrying  prizes  captured  from  France.  A  discrimination  was  also 
made  in  the  more  favorable  treatment  to  be  accorded  to  French  vessels 
of  war  in  the  matter  of  asylum  in  the  ports  of  the  United  States. 
How  could  the  United  States  be  faithful  to  its  treaty  obligations  to 
France  and  yet  save  itself  from  being  drawn  into  the  war?  The  posi- 
tion would  have  been  a  very  delicate  one  had  the  United  States  been 
obliged  to  carry  out  the  guarantee  of  the  French  possessions  in 
America.  Fortunately  the  operations  of  the  war  centered  in  Europe 
rather  than  on  the  American  continent,  and  France  did  not  demand 
the  fulfilment  of  the  territorial  guarantee.  In  other  respects,  how- 
ever, it  was  soon  evident  that  France  expected  not  only  the  sympathy 
of  the  United  States  but  a  certain  amount  of  actual  assistance  and 
support  of  a  not  directly  hostile  character,  which  was  quite  in  con- 
formity with  the  loose  ideas  of  neutrality  at  that  time  entertained 
in  Europe. 

Judging  from  the  enthusiasm  with  which  the  news  of  the  French 
Revolution  had  been  received  in  America,  France  might  well  have  had 
reason  to  expect  substantial  help  from  the  United  States.  The  cele- 
bration in  New  York  on  December  27,  1792,  the  "Civic  Feast"  in 
Boston  on  January  27,  1793,  the  liberty-caps  displayed  on  private 
housp.s,  the  cockades  worn  on  hats,  the  widespread  adoption  of  the 
title  of  "Citizen"  instead  of  Mr.  or  Sir,  made  it  seem  as  if  the  cause 
of  the  French  republic  had  been  adopted  without  reserve  by  its  sister 
republic  across  the  ocean. ^  When  the  news  reached  New  York,  in  the 
spring  of  1793,  that  the  King  of  France  had  been  beheaded  and  that 
the  new  republic  was  at  war  not  only  with  Austria  and  Prussia,  but 
with  England  and  Spain  as  well,  the  question  of  helping  France  began 
to  assume  a  more  serious  aspect.  A  war  with  England  and  Spain 
would  mean  for  the  United  States  the  destruction  of  trade,  a  heavy 
public  debt,  and  danger  to  the  country  both  on  the  west  and  south. 

iSee  J.  B.  McMaster,  A  History  of  the  People  of  the  United  States,  II,  89-94. 


HISTORY    OF    THE    NEUTRALITY    LAWS  17 

Men  who  had  accused  the  government  of  lukewarmness  in  its  sym- 
pathy for  the  revolution  in  France  now  began  to  count  the  cost,  and  it 
needed  only  the  report  of  the  wholesale  massacre  in  Paris  to  persuade 
them  that  they  were  justified  in  abandoning  any  idea  of  taking  sides 
in  the  war.  There  still  remained,  however,  a  large  party  of  Republi- 
cans in  Philadelphia  and  throughout  Pennsylvania  who  were  strongly 
in  favor  of  giving  active  assistance  to  France.  Throughout  the 
summer  of  1793  the  question  of  neutrality  became  the  line  of  party 
division  between  the  Republicans  and  the  Federalists,  until  it  was 
difficult  to  say  whether  the  sympathy  exhibited  by  the  former  for 
France  was  in  all  cases  real,  and  not  in  large  part  a  sentiment  played 
upon  by  party  leaders  for  the  sake  of  discrediting  the  Federalists 
who  were  represented  as  friends  of  monarchy  and  despotism. 

On  April  22,  1793,  Washington,  acting  on  the  advice  of  his  cabinet,   Washington's 
'issued  a  proclamation  of  neutrality,  the  text  of  which  reads  as  follows:  of°neutrality 

Whereas  it  appears  that  a  state  of  war  exists  between  Austria, 
Prussia,  Sardinia,  Great  Britain,  and  the  United  Netherlands,  of 
the  one  part,  and  France  on  the  other;  and  the  duty  and  interest 
of  the  United  States  require,  that  they  should  with  sincerity  and 
good  faith  adopt  and  pursue  a  conduct  friendly  and  impartial 
toward  the  belligerent  Powers : 

I  have  therefore  thought  fit  by  these  presents  to  declare  the 
disposition  of  the  United  States  to  observe  the  conduct  aforesaid 
towards  those  Powers  respectively ;  and  to  exhort  and  warn  the 
citizens  of  the  United  States  carefully  to  avoid  all  acts  and  pro- 
ceedings whatsoever,  which  may  in  any  manner  tend  to  contra- 
vene such  disposition. 

And  I  do  hereby  also  make  known,  that  whosoever  of  the 
citizens  of  the  United  States  shall  render  himself  liable  to  punish- 
ment or  forfeiture  'under  the  law  of  nations,  by  committing, 
aiding,  or  abetting  hostilities  against  any  of  the  said  Powers,  or 
by  carrying  to  any  of  them  those  articles  which  are  deemed 
contraband  by  the  modern  usage  of  nations,  will  not  receive  the 
protection  of  the  United  States,  against  such  punishment  or  for- 
feiture; and  further,  that  I  have  given  instructions  to  those  offi- 
cers, to  whom  it  belongs,  to  cause  prosecutions  to  be  instituted 
against  all  persons,  who  shall,  within  the  cognizance  of  the  courts 
of  the  United  States,  violate  the  law  of  nations,  with  respect  to 
the  Powers  at  war,  or  any  of  them.^ 

Neutrality  edicts  of  this  character  had  been  frequently  issued  since 
the  beginning  of  the  century,  many  of  them  setting  forth  more  specifi- 
cally certain  acts,  such  as  the  arming  of  privateers,  prohibited  to  the 
subjects  of  the  states  issuing  the  edict. 

^Am.  State  Papers,  For.  ReL,  I,  140. 


18 


NEUTRALITY   LAWS  OF  THE  UNITED   STATES 


Violations  of 
American  neu- 
trality. 


Genet's    justifica- 
tion of  them. 


On  May  15th,  Jefferson,  as  Secretary  of  State,  wrote  to  the  French 
minister,  M.  Ternant,  to  the  effect  that  he  had  received  a  memorial 
from  the  British  minister,  in  which  the  latter  "complains  that  the 
consul  of  France,  at  Charleston,  has  condemned,  as  legal  prize,  a  Brit- 
ish vessel,  captured  by  a  French  frigate,  observing  that  this  judicial 
act  is  not  warranted  by  the  usage  of  nations,  nor  by  the  stipulations 
existing  between  the  United  States  and  France."  Assuming  the  truth 
of  the  fact,  Jefferson  called  upon  the  French  minister  to  "interpose  effi- 
caciously to  prevent  a  repetition  of  the  error"  by  the  same  or  any  other 
French  consul.  Jefferson  next  called  the  attention  of  the  minister  to 
the  report  that  a  French  privateer  fitted  out  at  Charleston  had  cap- 
tured a  British  vessel  and  brought  it  into  the  port  of  Philadelphia, 
with  the  observation  that  without  further  evidence  he  would  not 
impute  to  the  public  authority  of  France  so  serious  an  act  as  the 
arming  of  men  and  vessels  within  United  States  territory.  Jefferson 
then  informed  the  minister  that  the  capture  of  the  British  ship  Grange 
by  a  French  frigate  within  the  Delaware  was  an  unlawful  act,  having 
been  committed  within  the  jurisdiction  of  the  United  States,  and  that, 
consequently,  the  United  States  called  upon  the  French  government  to 
release  the  crew  and  to  restore  the  vessel  and  its  cargo  to  their  former 
owners.^ 

Shortly  after  this  letter  M.  Genet  succeeded  M.  Ternant  as  Minister 
of  France.  Previously  to  his  arrival  in  Philadelphia  M.  Genet,  on 
landing  at  Charleston,  S.  C,  had  distributed  commissions  for  the  fitting 
out  of  French  privateers  in  that  port.  On  May  27th  he  wrote  to 
Jefferson,  answering  the  latter's  letter  of  May  15th  to  M.  Ternant. 
In  this  letter  M.  Genet  defended  the  act  of  the  French  consul  in 
setting  up  a  prize  court,  on  the  ground  that  the  power  was  conferred 
by  the  Treaty  of  Commerce  of  1778,  which  provided  that  the  officers 
of  the  port  should  not  make  examination  of  the  lawfulness  of  prizes 
brought  by  French  ships  of  war  into  American  ports.  The  conclu- 
siveness of  M.  Genet's  argument  is  not  very  evident.  The  United  States 
might,  without  derogation  of  its  sovereignty,  allow  the  validity  of 
French  prizes  to  pass  unquestioned,  but  it  could  not  permit  a  French 
consul  to  exercise  judicial  authority  in  one  of  its  ports.  M.  Genet 
likewise  admitted  that  several  vessels  had  been  armed  and  commis- 
sioned at  Charleston,  but  defended  the  acceptance  of  the  commissions 
on  the  ground  that  the  commanders  of  the  vessels,  whether  French  or 
American,  "knew  only  the  treaties  and  the  laws  of  the  United  States, 

'^Am.  State  Papers,  For.  Rel.,  I,  147.  The  illegality  of  the  capture  of  the 
Grange  was  subsequently  admitted  by  M.  Genet  and  the  restoration  of  the 
vessel  effected. 


HISTORY   OF   THE    NEUTRALITY    LAWS  19 

no  article  of  which  imposes  on  them  the  painful  injunction  of  aban- 
doning us  in  the  midst  of  the  dangers  which  surround  us."  Similarly 
he  defended  the  arming  of  vessels  on  the  ground  that  "liberty  con- 
sisted in  doing  what  the  laws  did  not  prohibit,"  and  that  there  was 
no  law  forbidding  such  measures.^ 

Jefferson  replied  to  his  letter  on  June  5th.  He  informed  Genet  that  Jefferson's  reply, 
the  President  had  decided,  after  mature  consideration,  "that  the  arming 
and  equipping  vessels  in  the  ports  of  the  United  States,  to  cruise 
against  nations  with  whom  we  are  at  peace,  was  incompatible  with 
the  territorial  sovereignty  of  the  United  States;  that  it  made  them 
instrumental  to  the  annoyance  of  those  nations,  and  thereby  tended  to 
compromit  their  peace;  and  that  he  thought  it  necessary,  as  an  evi- 
dence of  good  faith  to  them,  as  well  as  a  proper  reparation  to  the 
sovereignty  of  the  country,  that  the  armed  vessels  of  this  description 
should  depart  from  the  ports  of  the  United  States."  Continuing  the 
same  line  of  argument,  Jefferson  set  forth  in  clear  and  simple  terms 
the  principles  of  neutrality  as  understood  by  the  President:  "After 
fully  weighing  again,  however,  all  the  principles  and  circumstances 
of  the  case,  the  result  appears  still  to  be,  that  it  is  the  right  of  every 
nation  to  prohibit  acts  of  sovereignty  from  being  exercised  by  any 
other  within  its  limits,  and  the  duty  of  a  neutral  nation  to  prohibit 
such  as  would  injure  one  of  the  warring  Powers;  that  the  granting 
military  commissions,  within  the  United  States,  by  any  other  authority 
than  their  own,  is  an  infringement  on  their  sovereignty,  and  particu- 
larly so  when  granted  to  their  own  citizens,  to  lead  them  to  commit 
acts  contrary  to  the  duties  they  owe  their  own  country ;  that  the  depar- 
ture of  vessels,  thus  illegally  equipped,  from  the  ports  of  the  United 
States,  will  be  but  an  acknowledgment  of  respect,  analogous  to  the 
breach  of  it,  while  it  is  necessary  on  their  part,  as  an  evidence  of 
their  faithful  neutrality.  On  these  considerations,  sir,  the  President 
thinks  that  the  United  States  owe  it  to  themselves  and  to  the  nations  in 
their  friendship,  to  expect  this  act  of  reparation  on  the  part  of  vessels, 
marked  in  their  very  equipment  with  offence  to  the  laws  of  the  land, 
of  which  the  law  of  nations  makes  an  integral  part."- 

Genet's  reply,  dated  June  8,   1793,  written  in  a  decidedly  caustic  French  rights 
tone,  took  up  the  question  of  sovereignty  and  disposed  of  it  by  as-   ""^^^^  treaty. 
serting  the  principle  that  a  nation  at  war  has  the  right  of  arming  in 
the  neutral  state  "unless  by  treaty,  or  particular  laws  of  this  State, 
that  right  be  confined  to  a  single  nation,  friend,  or  ally,  and  express- 

^Am.  State  Papers,  For.  Rel,  I,  149. 
nbid.  150. 


20  NEUTRALITY   LAWS  OF  THE  UNITED   STATES 

ly  interdicted  to  others.  This  is  exactly  the  case  in  which  we  are."^ 
The  treaty  rights  referred  to  by  Genet  were  those  accruing  to 
France  under  the  Treaty  of  Amity  and  Commerce  of  1778.^ 
Art.  17  of  that  treaty  made  it  lawful  for  French  ships  of 
war  and  privateers  to  bring  their  prizes  into  the  ports  of  the 
United  States  and  to  depart  with  them  at  any  time  without 
being  subject  to  search  or  detention,  whereas,  on  the  contrary,  no 
shelter  or  refuge  was  to  be  given  to  vessels  which  had  made  prize  of 
the  subjects  or  property  of  France.  Art.  22  made  it  unlawful  for 
foreign  privateers,  other  than  those  of  France,  to  "fit  their  ships" 
in  the  ports  of  the  United  States  or  to  sell  or  to  exchange  prizes  which 
they  had  captured,  or  even  to  purchase  provisions  in  excess  of  a  fixed 
amount.  On  July  17th  Jefferson  replied  to  Genet's  claim  of  rights 
under  treaty,  in  the  following  terms:  "None  of  the  engagements  in 
our  treaties  stipulate  this  permission  [to  arm  vessels].  The  17th 
article  of  that  of  commerce,  permits  the  armed  vessels  of  either  party 
to  enter  the  ports  of  the  other,  and  to  depart  with  their  prizes  freely : 
but  the  entry  of  an  armed  vessel  into  a  port,  is  one  act ;  the  equipping 
a  vessel  in  that  port,  arming  her,  manning  her,  is  a  different  one,  and 
not  engaged  by  any  article  of  the  treaty."^ 

Jefferson  then  went  on  to  prove  that  the  position  taken  by  the 
United  States  was  in  conformity  with  "the  law  of  nature  and  the 
usage  of  nations,"  quoting  the  authority  of  Vattel  to  that  eft'ect.  In 
reply  Genet  referred  sarcastically  to  the  aphorisms  of  Vattel  which,  he 
said,  Jefferson  brought  forward  "to  justify  or  excuse  infractions  com- 
mitted on  positive  treaties."  "It  is  incontestable,"  he  said,  "that  the 
treaty  of  commerce  (Art.  XXII)  expressly  authorizes  our  arming  in 
the  ports  of  the  United  States,  and  interdicts  that  privilege  to  every 
enemy  nation."*  The  fallacy  of  Genet's  argument  was  too  evident  for 
further  discussion,  but  in  a  letter  of  August  16th  to  Mr.  Morris,  min- 
ister of  the  United  States  to  France,  Jefferson  exposed  it  in  detail: 
"Mr.  Genet  says,  that  the  22d  article  of  our  treaty  allows  him  express- 
ly to  arm  in  our  ports  .  .  .  Does  the  negative  to  the  enemies  of 
France,  and  silence  as  to  France  herself,  imply  an  affirmative  to 
France?  Certainly  not:  It  leaves  the  question,  as  to  France,  open 
and  free  to  be  decided  according  to  circumstances;  and  if  the  parties 

''■Am.  State  Papers,  For.  Rel.,  I,  151. 

^Malloy,  Treaties,  etc.,  hetzveen  the  United  States  and  Other  Powers  (1776- 
1909),  468. 
^Am.  State  Papers,  For.  Rel,  I,  154. 
*lbid.  155. 


HISTORY   OF   THE    NEUTRALITY    LAWS  21 

had  meant  an  affirmative  stipulation,  they  would  have  provided  for  it 
expressly;  they  would  never  have  left  so  important  a  point  to  be 
inferred  from  mere  silence,  or  implication.  .  .  .  And,  since  we 
are  bound  by  treaty  to  refuse  it  [the  right  to  arm]  to  the  one  party, 
and  are  free  to  refuse  it  to  the  other,  we  are  bound  by  the  laws  of 
neutrality  to  refuse  it  to  that  other."^ 

On  August  7th  Jefferson  wrote  to  Genet  informing  him  that  the  Restitution  of 
President  considered  the  United  States  as  bound  "pursuant  to  positive  P'''^^^  demanded, 
assurances,  given  in  conformity  to  the  laws  of  neutrality,  to  effectuate 
the  restoration  of,  or  to  make  compensation  for,  prizes  which  shall 
have  been  made,  of  any  of  the  parties  at  war  with  France,  subsequent 
to  the  5th  day  of  June  last,  by  privateers  fitted  out  of  our  ports. "^ 
Accordingly,  Genet  was  requested  to  effect  restitution  of  all  prizes 
taken  by  such  privateers  and  brought  into  the  ports  of  the  United 
States  subsequent  to  that  date,  and  was  warned  that  the  United  States 
would  not  only  prevent  the  future  fitting  out  of  privateers  in  its  ports, 
but  would  refuse  asylum  to  such  as  had  been  at  any  time  so  fitted  out, 
and  would  cause  restitution  of  prizes  brought  by  such  privateers  within 
its  ports.  In  a  letter  of  September  5th  to  the  British  minister.  Jef- 
ferson explained  that  "having,  for  particular  reasons,  forborne  to  use 
all  the  means  in  our  poiver^  for  the  restitution  of  the  three  vessels 
mentioned  in  my  letter  of  August  7th,  the  President  thought  it  incum- 
bent on  the  United  States  to  make  compensation  for  them."^  But 
inasmuch  as  after  August  7th  the  President  was  determined  to  effect 
restitution  "by  all  the  means  in  our  power,"  no  compensation  would 
then  be  due  to  the  other  belligerents. 

In  the  meantime  the  government  was  taking  active  steps  to  prevent  Preventive 
violations  of  the  neutrality  of  the  United  States.  On  June  1st  Genet 
complained  of  the  arrest  of  Gideon  Henfield,  an  American  citizen 
serving  on  board  the  Citizen  Genet,  the  French  privateer  referred  to  in 
Jefferson's  letter  of  May  15th,  and  requested  his  "immediate  release- 
ment."^    Jefferson  replied  that  Henfield  would  be  tried  in  due  course 

i^m.  State  Papers,  For.  Rel,  I,  168. 

'-Ibid.  167. 

3The  italics  referred  to  the  expression  used  in  treaties  of  the  United 
States  with  France  (1778),  the  Netherlands  (1782)  and  Prussia  (1785)  in 
which  each  of  the  contracting  parties  agrees  to  defend  and  protect  "by  all  the 
means  in  their  power"  the  vessels  belonging  to  the  subjects  of  the  other  in  their 
territorial  waters,  and  to  cause  such  vessels  to  be  restored  to  their  rightful 
owners  when  they  have  been  captured  within  the  jurisdiction  of  the  contracting 
parties. 

^Ibid.  174. 

^Ibid.  151. 


measures. 


22 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Hamilton's 
instructions  to 
the  collectors 
of  customs. 


for  the  offense  with  which  he  was  charged,  and  he  enclosed  an  opinion 
of  Attorney  General  Randolph  to  the  effect  that  Henfield  was  in- 
dictable at  common  law  for  disturbing  the  peace  of  the  United  States 
and  punishable  for  having  violated  the  treaties  of  peace  between  the 
United  States  and  the  Powers  at  war  with  France.^  On  June  7th  the 
sale  of  the  prizes  captured  by  the  French  privateer,  Citizen  Genet, 
was  interfered  with  by  a  deputy  marshal  of  the  District  Court  for  the 
District  of  Pennsylvania.  On  June  8th  a  French  vessel  called  the 
Republican,  which  had  been  armed  for  war  in  the  port  of  New  York, 
was  detained  by  order  of  Governor  Clinton,  acting  under  instructions 
from  the  President.  On  June  21st  the  French  consul  at  New  York 
entered  a  vigorous  protest  against  the  assumption  by  the  District  Court 
of  New  York  of  jurisdiction  over  a  French  prize,  the  decision  of 
which  was  pending  in  the  French  Consular  Court.^ 

In  spite  of  the  determined  stand  taken  by  the  government,  priva- 
teers continued  to  be  fitted  out  in  American  ports.  Governor  Moultrie 
was  secretly  in  sympathy  with  France  and  took  little  trouble  to  exe- 
cute the  orders  of  the  President.  Jefferson,  relying  upon  a  very  doubt- 
ful promise  from  Genet,  allowed  the  Petit  Democrat  an  opportunity  to 
slip  out  from  the  port  of  Philadelphia.  Jefferson  had  indeed,  at  heart, 
very  little  sympathy  with  the  measures  that  were  being  taken,  and 
urged  Madison  to  attack  the  President's  proclamation  of  neutrality  as 
being  unconstitutional.^  More  effective  measures  were  necessary,  and 
on  August  4th,  Hamilton,  as  Secretary  of  the  Treasury,  issued  a  series 
of  instructions  to  the  collectors  of  customs  at  the  chief  ports  of  the 
United  States.  The  instructions  called  upon  the  collectors  to  be 
vigilant  in  detecting  any  acts  in  violation  of  the  laws  of  neutrality,  and 
to  give  immediate  notice  of  such  attempts  to  the  proper  authorities. 
No  asylum  was  to  be  given  to  vessels,  nor  to  their  prizes,  of  either  of 
the  powers  at  war  with  France,  in  accordance  with  the  Treaty  of 
1778  with  France,  nor  to  armed  vessels  which  had  been  originally 
fitted  out  in  any  port  of  the  United  States  by  either  of  the  parties  at 
war.  The  purchase  of  contraband  articles,  as  merchandise,  was  to  be 
free  to  both  parties.  The  names  of  citizens  of  the  United  States  in 
the  service  of  either  of  the  parties  were  to  be  notified  to  the  local 
state  governor.  Vessels  contravening  these  regulations  were  to  be  re- 
fused clearance.  Vessels,  except  those  in  the  immediate  service  of 
foreign  governments,  were  to  be  examined  as  to  their  military  equip- 

i^w.  State  Papers,  For.  Rcl,  I,  151-152. 

^Ibid.  153. 

sMcMaster,  11,  114-119. 


HISTORY   OF   THE    NEUTRALITY    LAWS  23 

ment  upon  entering  and  upon  leaving  port.  In  order  to  guide  the 
collectors  in  this  duty  a  schedule  of  rules  which  had  been  adopted  by 
the  President  was  transmitted  to  them.  These  rules  were  declared 
to  be  "deductions  from  the  laws  of  neutrality,  established  and  received 
among  nations."  The  following  acts  were  declared  unlawful:  The 
arming  and  equipping  of  vessels  in  the  ports  of  the  United  States,  by 
any  of  the  belligerent  parties,  for  military  service ;  equipments  of  every 
kind  of  privateers  of  the  powers  at  war  with  France ;  equipments  of 
the  vessels  of  any  of  the  belligerent  powers,  which  were  of  a  nature 
solely  adapted  to  war,  with  a  qualified  exception  in  favor  of  French 
vessels  in  conformity  with  Art.  XIX  of  the  Treaty  of  1778.  The  fol- 
lowing acts  were  declared  lawful :  equipments  of  merchant  vessels 
by  either  of  the  belligerent  parties  for  the  accommodation  of  them  as 
such;  equipments  of  the  public  vessels  of  war  of  any  of  the  belliger- 
ents, when  such  equipments  were  in  themselves  doubtful  as  being  ap- 
plicable either  to  commerce  or  war,  except  when  the  foreign  vessel 
was  bringing  into  port  a  prize  captured  from  France,  in  accordance 
with  Art.  XVII  of  the  treaty ;  similar  equipments  of  vessels  fitted  for 
merchandise  and  war;  enlistments,  by  vessels  of  either  of  the  parties, 
of  citizens  of  their  own  nationality,  except  where  such  vessels  had 
been  fitted  out  in  United  States  ports  contrary  to  the  above  rules,  and 
except  privateers  of  powers  at  war  with  France  or  vessels  carrying 
prizes  captured  from  France.^ 

It  is  to  be  noted  that  the  above  instructions  distinctly  prohibit  any 
interference  with  commerce  in  contraband,  which  is  free  both  to  the 
parties  at  war  and  to  citizens  of  the  United  States.  In  the  case  of 
the  latter,  however,  the  government  withdraws  its  protection  from 
them  and  abandons  them  to  the  penalties  of  capture  and  confiscation 
authorized  by  the  laws  of  war.  Moreover,  the  instructions  make  no 
mention  of  the  distribution  of  commissions  authorizing  persons  in  the 
name  of  France  to  fit  out  privateers,  since  that  act  was  regarded  by  the 
government  not  merely  as  a  violation  of  the  law  of  nations  in  regard 
to  neutrality,  but  as  an  infringement  of  the  sovereignty  of  the  United 
States  to  which,  apart  from  considerations  of  neutrality,  the  United 
States  would  not  submit.  The  instructions  issued  by  Hamilton  had 
the  desired  effect,  and  there  is  no  evidence  that  after  August  7,  1793, 
other  privateers  were  fitted  out  in  the  ports  of  the  United  States. 

It  was  evident,  however,  that  legislation  on  the  part  of  Congress  Necessity  of 
was  necessary  to  complete  and  strengthen  the  measures  taken  by  the  penal  legislation. 

^For  the  text  of  the  instructions,  see  App.,  p.  170. 


24  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

administration.  In  July,  1793,  Gideon  Henfield  was  indicted  at  com- 
mon law  for  enlisting  on  the  French  privateer,  Citizen  Genet,  in  viola- 
tion of  the  treaties  of  the  United  States.  The  jurisdiction  of  the 
federal  courts  in  criminal  cases  had  not  yet  been  asserted,  but  the 
administration  urged  the  trial  of  the  case.  The  judges  ruled  that  the 
act  of  which  Henfield  was  accused  was  a  crime,  and  they  charged  the 
jury  to  that  effect.  But  popular  sentiment  in  favor  of  France  was 
running  high  at  that  time,  and  the  jury  promptly  returned  a  verdict 
of  acquittal.^  On  August  21st  the  French  Vice  Consul  at  Boston, 
M.  Duplaine,  with  a  body  of  armed  men,  forcibly  rescued  a  vessel 
named  the  Greyhound  from  the  hands  of  the  United  States  Marshal 
who  had  seized  the  vessel  by  order  of  the  circuit  court  for  that  dis- 
trict.^ But,  in  spite  of  the  grave  character  of  the  offense,  the  grand 
jury  of  Philadelphia  refused  to  find  a  true  bill  against  him.  In  addi- 
tion to  the  failure  on  the  part  of  the  government  to  punish  the  enlist- 
ment of  individual  citizens  in  the  service  of  France,  throughout  the 
summer  of  1793  rumors  were  constantly  being  received  that  armies 
were  being  organized  in  the  South  and  West  by  the  agents  of  Genet. 
One  army  was  preparing,  it  was  said,  to  lay  siege  to  New  Orleans, 
then  in  the  possession  of  Spain,  while  another  was  planning  to  march 
across  Georgia  and  invade  the  Floridas.  Governor  Shelby,  of  Ken- 
tucky, refused  to  prosecute  the  alleged  offenders,  and  replied  to  Jeffer- 
son that  all  citizens  had  a  right  to  leave  the  state,  artd  that  there  was 
nothing  to  prevent  them  from  taking  arms  and  ammunition  with  them. 
Washington's  On  December  3,  1793,  President  Washington,  in  his  annual  address  at 

address  to  ^^iq  opening  of  Congress,  reviewed  the  policy  which  the  government 

had  attempted  to  follow  and  called  upon  Congress  to  enact  appro- 
priate legislation: 

As  soon  as  the  war  in  Europe  had  embraced  those  Powers  with 
whom  the  United  States  have  the  most  extensive  relations,  there 
was  reason  to  apprehend  that  our  intercourse  with  them  might 
be  interrupted,  and  our  disposition  for  peace  drawn  into  question 
by  the  suspicions  too  often  entertained  by  belligerent  nations.  It 
seemed,  therefore,  to  be  my  duty  to  admonish  our  citizens  of  the 
consequences  of  a  contraband  trade,  and  of  hostile  acts  to  any  of 
the  parties ;  and  to  obtain,  by  a  declaration  of  the  existing  legal 
state  of  things,  an  easier  admission  of  our  right  to  the  immuni- 
ties belonging  to  our  situation.  Under  these  impressions,  the 
proclamation  which  will  be  laid  before  you  was  issued. 

iWharton's  State  Trials,  49. 

Mm.  State  Papers,  For.  Rel,  I,  178-182. 


HISTORY    OF   THE    NEUTRALITY    LAWS  25 

In  this  posture  of  affairs,  both  new  and  delicate,  I  resolved 
to  adopt  general  rules,  which  should  conform  to  the  treaties,  and 
assert  the  privileges,  of  the  United  States.  These  were  reduced 
into  a  system,  which  will  be  communicated  to  you.  Although  I 
have  not  thought  myself  at  liberty  to  forbid  the  sale  of  the  prizes, 
permitted  by  our  treaty  of  commerce  with  France  to  be  brought 
into  our  ports,  I  have  not  refused  to  cause  them  to  be  restored 
when  they  were  taken  within  the  protection  of  our  territory,  or 
by  vessels  commissioned  or  equipped  in  a  warlike  form  within  the 
limits  of  the  United  States. 

'It  rests  with  the  wisdom  of  Congress  to  correct,  improve,  or 
enforce,  this  plan  of  procedure ;  and  it  will  probably  be  found 
expedient  to  extend  the  legal  code  and  the  jurisdiction  of  the 
courts  of  the  United  States  to  many  cases  which,  though  depend- 
ent on  principles  already  recognized,  demand  some  further  pro- 
visions. 

Where  individuals  shall,  within  the  United  States,  array  them- 
selves in  hostility  against  any  of  the  Powers  at  war ;  or  enter  upon 
military  expeditions  or  enterprises  within  the  jurisdiction  of  the 
United  States;  or  usurp  and  exercise  judicial  authority  within 
the  United  States;  or  where  the  penalties  on  violations  of  the 
law  of  nations  may  have  been  indistinctly  marked,  or  are  inade- 
quate :  these  offences  cannot  receive  too  early  and  close  an  atten- 
tion, and  require  prompt  and  decisive  remedies. 

Whatsoever  those  remedies  may  be,  they  will  be  well  adminis- 
tered by  the  judiciary,  who  possess  a  long  established  course  of 
investigation,  effectual  process,  and  officers  in  the  habit  of  execu- 
ting it. 

In  like  manner,  as  several  of  the  courts  have  doubted,  under 
particular  circumstances,  their  power  to  liberate  the  vessels  of  a 
nation  at  peace,  and  even  of  a  citizen  of  the  United  States,  al- 
though seized  under  a  false  color  of  being  hostile  property,  and 
have  denied  their  power  to  liberate  certain  captures  within  the 
protection  of  our  territory,  it  would  seem  proper  to  regulate  their 
jurisdiction  in  these  points ;  but  if  the  Executive  is  to  be  the 
resort  in  either  of  the  two  last  mentioned  cases,  it  is  hoped  that 
he  will  be  authorized  by  law  to  have  facts  ascertained  by  the 
courts,  when,  for  his  own  information,  he  shall  request  it.^ 

On  March  24,   1794,  Washington  issued  a  second  proclamation  of   His  second  procla- 
neutrality  directed  against  the  military  expeditions  which  were  being  """^I'O"  of  "^"" 
formed  in  Kentucky.-     The  warning  contained  in  the  proclamation  is 
more  specific  than  that  in  the  proclamation   of  the  preceding  year. 
Instead  of  the  general  statement  in  the  earlier  document,  that  prose- 
cutions would  be  instituted  against  all  persons  who  should  violate 

''■Am.  State  Papers,  For.  Rel.,  I,  21. 

2For  the  text  of  the  proclamation,  see  App.,  p.  172. 


26  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

the  law  of  nations,  the  President  mentions  the  different  acts  of  either 
enlisting  others  or  enrolling  oneself  in  such  expeditions. 
Act  of  June  5,  The  desired  legislation  was   furnished  on  June   5,    1794.     In  the 

debates  before  the  House  of  Representatives  preceding  the  adoption 
of  the  act,  the  discussion  was  mainly  confined  to  the  advisability  of 
adopting  a  provision  forbidding  the  sale  within  the  United  States  of 
vessels  or  goods  captured  from  a  prince  or  state  with  whom  the  United 
States  was  at  peace,  when  the  vessel  or  goods  had  been  captured  by 
the  enemies  of  such  prince  or  state,  unless  the  vessel  or  goods  should 
first  have  been  carried  to  a  port  or  place  within  the  territory  of  the 
state  to  which  the  captors  belonged.  The  question  was  whether  the 
Treaty  of  1778  with  France  restrained  the  United  States  from  for- 
bidding the  sale  within  its  ports  of  prizes  captured  by  France,  and  if 
not,  whether  it  was  expedient  to  refuse  France  the  privilege  of  selling 
her  prizes  in  American  ports.  But  in  spite  of  the  urgent  pleas  made 
in  favor  of  the  provision,  it  was  ultimately  rejected.^  The  act  v/hich 
finally  passed  embodied  the  instructions  issued  by  Hamilton  to  the 
collectors  of  customs,  and  supplemented  them  in  accordance  with  the 
recommendations  contained  in  the  President's  message.^  The  provi- 
sions of  the  act  are  as  follows  :^ 
Summary  of  Sec.   1   prohibits  the  acceptance  by  citizens  of  the  United  States 

Its  provisions.  within  the  territory  or  jurisdiction  of  the  United  States  of  commis- 

sions to  serve  a  foreign  prince  or  state. 

Sec.  2  prohibits  all  persons  within  the  territory  or  jurisdiction  of 
the  United  States  from  enlisting  or  hiring  other  persons  to  enlist  in 
the  service  of  any  foreign  prince  or  state.  An  exception  is  made  of 
citizens  of  a  foreign  state  who  are  transiently  within  the  United 
States,  and  a  further  exception  exempts  from  punishment  under  the 
statute  such  persons  as,  within  thirty  days  after  enlistment,  discover 
upon  oath  the  person  by  whom  they  were  enlisted. 

Sec.  3  prohibits  the  fitting  out  and  arming  of  vessels  within  the 
ports  of  the  United  States  with  intent  that  such  vessels  shall  be  used  in 
the  service  of  a  foreign  prince  or  state  in  a  war  against  a  prince  or 
state  with  whom  the  United  States  are  at  peace;  also  the  issuance  or 
delivery  of  a  commission  to  such  vessel  for  the  aforesaid  purpose. 

^Annals  of  Congress,  3rd  Cong.,  745-757. 

2The  bill  passed  the  House  of  Representatives  by  a  vote  of  48  to  38.  In 
the  Senate  the  opposition  of  the  Republicans  was  even  stronger,  and  it  vi^as 
only  by  the  deciding  vote  of  the  Vice-President  that  the  bill  was  passed  to  the 
third  reading.     Annals  of  Congress,  3rd  Cong.,  67,  757. 

3The  text  of  the  act  is  given  in  full  in  the  App.,  p.  173. 


HISTORY    OF   THE    NEUTRALITY    LAWS  27 

Sec.  4  prohibits  all  persons  from  increasing  or  augmenting  within 
the  territory  or  jurisdiction  of  the  United  States  the  force  of  any  ship 
of  war  in  the  service  of  a  foreign  prince  or  state. 

Sec.  5  prohibits  all  persons  from  setting  on  foot  directly  or  indi- 
rectly within  the  territory  or  jurisdiction  of  the  United  States  any 
military  expedition  or  enterprise  to  be  carried  on  against  the  territory 
of  a  foreign  prince  or  state  with  whom  the  United  States  are  at 
peace. 

Sec.  6  confers  jurisdiction  upon  the  district  courts  to  hear  com- 
plaints in  cases  of  captures  made  within  the  territorial  waters  of  the 
United  States. 

Sec.  7  empowers  the  President  of  the  United  States  in  all  cases  in 
which  the  foregoing  provisions  shall  be  violated  to  employ  such  part 
of  the  land  or  naval  forces  of  the  United  States  as  shall  be  judged 
necessary  to  enforce  the  provisions  in  question. 

Sec.  8  confers  similar  powers  upon  the  President  to  compel  the  de- 
parture from  the  United  States  of  any  foreign  vessel  which  by  the 
law  of  nations  or  the  treaties  of  the  United  States  ought  not  to  remain 
within  the  United  States. 

Sec.  9  provides  that  the  act  shall  not  be  so  construed  as  to  pre- 
vent the  prosecution  of  treason  and  piracy  as  defined  by  treaty  or  by 
law  of  the  United  States. 

Sec.  10  provides  that  the  act  shall  be  in  force  during  the  term  of 
two  years  and  from  thence  to  the  end  of  the  next  session  of  Congress. 

The  act  was  entitled  "An  Act  in  addition  to  the  act  for  the  punish- 
ment of  certain  crimes  against  the  United  States."  It  was  continued 
in  force  for  a  period  corresponding  to  its  original  duration  by  the 
Act  of  March  2,  1797,  and  was  made  permanent  by  the  Act  of  April 
24,  1800. 

The  scope  of  the  act  was  not  only  more  comprehensive  than  any  of  High  standard 
the  previous  temporary  neutrality  edicts  issued  by  the  nations  of  get  "by"*it^ '^^ 
Europe  earlier  in  the  century,  but  it  went  considerably  beyond  what 
was  considered  the  duty  of  a  neutral  nation.  It  was  the  first  attempt 
ever  made  on  the  part  of  a  neutral  nation  to  pronounce  definitely 
that  certain  acts  would  be  considered  by  it  a  violation  of  neutrality, 
and  to  incorporate  those  acts  into  its  criminal  code  and  enforce  their 
observance  in  favor  of  any  friendly  prince  or  state  without  distinc- 
tion. Na  higher  tribute  to  the  statesmanship  of  Washington  and  his 
advisers  could  be  paid  than  that  rendered  by  Mr.  Canning  in  1823  in 
a  speech  before  the  House  of  Commons  against  the  repeal  of  the  Brit- 
ish Foreign  Enlistment  Act  of  1819.     "If  I  wished,"  he  said,  "for  a 


28  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

guide  in  a  system  of  Neutrality,  I  should  take  that  laid  down  by 
America  in  the  days  of  the  presidency  of  Washington  and  the  secre- 
taryship of  Jefferson."^  In  later  years  an  eminent  writer  on  inter- 
national law,  Mr.  W.  E.  Hall,  gave  the  following  estimate  of  the 
high  standard  of  neutral  duty  adopted  by  the  United  States : 

The  policy  of  the  United  States  in  1793  constitutes  an  epoch 
in  the  development  of  the  usages  of  neutrality.  There  can  be  no 
doubt  that  it  was  intended  and  believed  to  give  effect  to  the  obliga- 
tions then  incumbent  upon  neutrals.  But  it  represented  by  far 
the  most  advanced  existing  opinions  as  to  what  those  obligations 
were;  and  in  some  points  it  even  went  further  than  authoritative 
international  custom  has  up  to  the  present  time  advanced.  In 
the  main  however  it  is  identical  with  the  standard  of  conduct 
which  is  now  adopted  by  the  community  of  nations.^ 

First  conviction  The  first  conviction  under  the  Neutrality  Act  was  that  of  fitienne 

under  it.  Guinet  who  was  indicted  under  Sec.  3  of  the  act  "for  being  knowingly 

concerned  in  furnishing,  fitting  out  and  arming  Les  Jumeaux  in  the 
port  and  river  Delaware  with  intent  that  she  should  be  employed  in 
the  service  of  the  French  Republic,  to  cruise,  or  commit  hostilities, 
upon  the  subjects  of  Great  Britain,  with  whom  the  United  States  are 
at  peace."  The  facts  of  the  case  were  as  follows :  The  vessel  entered 
the  port  of  Philadelphia  and  registered  at  the  cubtom-house  as  a 
merchantman.  The  owners  then  employed  a  carpenter  who  opened 
up  new  port-holes  and  made  other  preparations  for  an  increase  of 
armament.  The  suspicions  of  the  government  being  aroused,  the 
Secretary  of  War  ordered  that  all  the  recent  equipments  of  a  warlike 
nature  should  be  dismantled.  The  vessel  then  cleared  from  port,  but 
when  about  sixty  miles  below  Philadelphia  she  stopped  and  took  on 
board  cannon,  ammunition  and  a  number  of  men.  When  a  further 
effort  was  made  to  obtain  more  guns  from  Philadelphia,  the  authori- 
ties were  informed  and  a  cutter  was  sent  to  arrest  the  vessel,  which 
however  escaped.  The  trial  of  Guinet  was  held  in  the  Circuit  Court 
for  the  District  of  Pennsylvania.  In  his  charge  to  the  jury.  Justice 
Patterson  said:  "Converting  a  ship  from  her  original  destination,  with 
intent  to  commit  hostilities ;  or  in  other  words,  converting  a  mer- 
chant ship  into  a  vessel  of  war,  must  be  deemed  an  original  outfit ;  for 
the  act  would  otherwise  become  nugatory  and  inoperative.  It  is  the 
conversion  from  the  peaceable  use,  to  the  warlike  purpose,  that  con- 

iPhiUimore,  III,  §CXLVII. 
"^International  Law,  587. 


HISTORY    OF   THE    NEUTRALITY    LAWS  29 

stitutes  the  offense."  The  jury  recommended  a  verdict  of  guilty  and 
Guinet  was  sentenced  to  imprisonment  for  one  year  and  a  fine  of 
$400.1 

In  several  cases  the  district  courts  restored  prizes  to  their  owners   Case  of  the 

(ft  C  CJU  C 

where  it  was  proved  that  the  captor  had  illegally  augmented  its  force 
in  the  ports  of  the  United  States.-    The  case  of  the  Cassius  deserves 
special  mention  because  of  the  discussion  to  which  it  was  subjected  in 
connection  with  the  fitting  out  of  Confederate  ships  in  English  ports 
during  the  Civil  War  in  the  United  States.     This  vessel  was  at  first 
named  Les  Jnmeaux  and  the  history  of  its  acts  in  the  port  of  Phila- 
delphia  has   been   described   above   in   the   trial   of    fitienne   Guinet. 
After  escaping  from  the  Delaware  the  vessel  proceeded  to  San  Do- 
mingo and  was  there  sold  by  her  owners  to  the  French  government. 
Her  armament  was  completed,  and  she  was  regularly  commissioned  as 
a  ship  of  war  under  the  name  of  Le  Cassius.     Some  months  later, 
she  captured  the  brig  William  Lindsay  and  took  it  into  a  French  port 
where  it  was  regularly  condemned  as  a  prize  of  war.     In  August, 
1795,  she  came  to  Philadelphia  and  upon  her  arrival  at  that  port  was 
libelled  by  the  owners  of  the  captured  brig.    Following  the  issue  by  the 
District  Court  of  Pennsylvania  of  a  process  of  attachment  against  the 
Cassius,   a   motion    for   a   prohibition   upon    the    District    Court    was 
filed  in  the  Supreme  Court  of  the  United  States.     The  question  before 
the  court  was  not  whether  the  vessel  had  been  illegally  fitted  out  in 
the  ports  of  the  United  States  in  violation  of  the  neutrality  act,  but 
whether  the  decision  of  a  foreign  prize  court  could,  at  the  instance 
of  the  owners  of  the  captured  vessel,  be  reviewed  in  the  courts  of  the 
United  States,  and  whether,  in  such  cases,  the  public  vessels  of  war 
of  a  belligerent  are  amenable  to  suit  before  the  tribunals  of  a  neutral 
power.     The  Supreme  Court  decided  both  points  in  the  negative,  and 
the  prohibition   was   accordingly  issued.^     The  vessel  was,   however, 
immediately  held  to  answer  for  an  information  which  had  been  filed 
against  it  in  the  Circuit  Court  of  the  United  States  on  the  ground 
that  it  had  been  illegally  armed  within  the  jurisdiction  of  the  United 
States  and  was  therefore  subject  to  forfeiture.     The  government  re- 
fused to  take  the  case  from  the  judiciary  and  the  proceedings  dragged 
on  until  the  following  April,  when  an  effort  was  made  to  obtain  evi- 
dence from  the  French  minister  of  the  bona  Ude  transfer  of  the  vessel 

^United  States  v.  Guinet,  2  Dallas,  321. 

2See  The  Nancy,  4  Fed.  Cases,  No.  1,898;  The  Betty  Carthcart,  17  Fed.  Cases, 
No.  9,742. 

^United  States  v.  Peters,  3  Dallas,  121. 


30  NEUTRALITY   LAWS   OF  THE   UNITED   STATES 

to  the  French  government.  In  October,  1796,  the  Circuit  Court  dis- 
missed the  proceedings  upon  the  technical  ground  that  jurisdiction 
properly  belonged  to  the  District  Court. ^  The  French  minister  re- 
fused to  acknowledge  property  in  the  vessel  with  the  intention  of 
holding  the  United  States  government  responsible  for  the  loss.  Just 
what  answer  the  court  would  have  given  to  the  question,  whether  the 
subsequent  transfer  of  the  vessel  to  the  French  government  should 
exempt  it  from  confiscation  because  of  illegal  acts  committed  before 
the  transfer,  it  is  difficult  to  say.  The  action  of  the  government  in 
refusing  to  interfere  to  take  the  vessel  from  the  custody  of  the 
judiciary  would  seem  to  indicate  that  it  favored  holding  the  vessel 
responsible;  and  this  attitude  is  supported  by  Mr.  Pickering,  Secre- 
tary of  State,  in  a  letter  of  October  1,  1795,  to  the  French  minister 
on  the  ground  that  otherwise  "the  design  of  the  law,  the  prevention 
of  illegally  fitting  out  privateers,  would  generally  be  defeated;  trans- 
fers would  be  promptly  made,  on  purpose  to  evade  the  law."^  It  may 
be  suggested  that  as  forfeiture  of  the  vessel  immediately  operated 
upon  the  conviction  of  the  person  concerned  in  the  unlawful  act  of 
arming  it,  the  principle  could  be  advanced  that  no  subsequent  transfer 
could  be  valid  under  the  circumstances. 
Act  of  June  14,  On  May   16,   1797,  shortly  after  his  accession  to  the  presidency, 

^'^'-  John  Adams  delivered  an  address  to   Congress  in  which  he  called 

attention  to  the  fact  that,  under  the  guise  of  armed  merchantmen, 
privateers  were  being  fitted  out  in  the  ports  of  the  United  States.  "It 
remains,"  he  said,  "for  Congress  to  prescribe  such  regulations  as  will 
enable  our  seafaring  citizens  to  defend  themselves  against  violations 
of  the  law  of  nations  [in  the  form  of  piracy],  and  at  the  same  time 
restrain  them  from  committing  acts  of  hostility  against  the  Powers 
at  war."  In  addition,  he  mentioned  "that  some  of  our  citizens  resi- 
dent abroad,  have  fitted  out  privateers,  and  others  have  voluntarily 
taken  the  command,  or  entered  on  board  of  them,  and  committed  spo- 
liations on  the  commerce  of  the  United  States."^  In  response  to  the 
call  of  the  President,  on  June  14,  1797,  Congress  passed  a  bill  entitled 
"An  Act  to  prevent  citizens  of  the  United  States  from  privateering 
against  nations  in  amity  with,  or  against  citizens  of  the  United  States." 
The  act  goes  a  step  further  than  the  Act  of  1794,  first,  by  providing 
punishment  for  acts  committed  "without  the  limits  of"  the  United 
States,  and  secondly,  by  inserting  the  clause  "or  upon  the  citizens  of 

114  Fed.  Cases,  No.  7,743. 

Mm.  State  Papers,  For.  Rel,  I,  634. 

^Ibid.  I,  41. 


HISTORY    OF   THE    NEUTRALITY    LAWS  31 

the  United  States,  or  their  property"  after  the  clause  "to  cruise  or 
commit  hostilities,  upon  the  subjects,  citizens  or  property  of  any  prince 
or  state  with  whom  the  United  States  are  at  peace. "^ 

The  position  of  the  United  States  in  relation  to  the  wars  between 
France  and  Europe  remained  for  more  than  a  decade  a  source  of  great 
anxiety  to  the  several  cabinets  which  succeeded  to  that  of  Washington, 
Evident  as  were  the  sympathies  of  Jefferson  with  the  French  republic 
in  1793,  his  attitude  had  changed  notably  by  the  time  of  his  election 
to  the  presidency.  Relations  with  P'rance  had  become  greatly  strained 
during  the  year  1797  owing  to  the  attempt  on  the  part  of  the  French 
Directory  to  intimidate  the  American  envoys.  Republican  sympathy 
for  France  yielded  before  the  Federal  cry  of  "Millions  for  defense, 
but  not  one  cent  for  tribute !"  Under  successive  decrees  issued  by 
the  French  Directory  between  1793  and  1799,  American  commerce  had 
been  subjected  to  embargoes  in  French  ports  and  to  ruinous  restric- 
tions in  trade;  and  although  a  convention  was  concluded  with  Napo- 
leon as  First  Consul  in  1799,  securing  better  terms  for  neutrals,  no 
indemnity  was  obtained  for  the  losses  suffered  by  American  merchants. 

In  1803  war  again  broke  out  between  France  and  England.  The  Jefferson's  policy 
Republicans  had  come  into  power,  but  there  was  no  clamor  for  an  '"  °^"^* 
alliance  with  France.  In  his  message  to  Congress  on  October  17, 
1803,  Jefferson  expressed  his  "gratitude  to  that  kind  Providence 
which,  inspiring  with  wisdom  and  moderation  our  late  legislative  coun- 
cils while  placed  under  the  urgency  of  the  greatest  wrongs,  guarded 
us  from  hastily  entering  into  the  sanguinary  contest."  He  then  pro- 
ceeded to  outline  the  attitude  of  neutrality  which  the  government  in- 
tended to  pursue. 

In  the  course  of  this  conflict  let  it  be  our  endeavor,  as  it  is  our 
interest  and  desire,  to  cultivate  the  friendship  of  the  belligerent 
nations  by  every  act  of  justice  and  of  innocent  kindness ;  to  re- 

ipor  the  text  of  the  Act,  see  App.,  p.  176. 

As  far  as  regards  the  act  of  privateering  against  citizens  of  the  United 
States  it  would  seem  that  there  were  already  in  existence  laws  which  covered 
that  act.  Sec.  9  of  an  "Act  for  the  punishment  of  certain  crimes  against 
the  United  States,"  passed  on  April  30,  1790,  provided  that  "if  any  citizen 
shall  commit  any  piracy  or  robbery  aforesaid,  or  any  act  of  hostihty  against 
the  United  States,  or  any  citizen  thereof,  upon  the  high  sea,  under  colour  of 
any  commission  from  any  foreign  prince,  or  state,  or  on  pretence  of  authority 
from  any  person,  such  offender  shall,  notwithstanding  the  pretence  of  any 
such  authority,  be  deemed,  adjudged  and  taken  to  be  a  pirate,  felon,  and  robber, 
and  on  being  thereof  convicted  shall  suffer  death."  Sec.  8  of  the  same  Act 
was  sufficiently  broad  to  have  included  the  act  of  cruising  or  committing 
hostilities  against  citizens  of  the  United  States  independently  of  any  assumed 
commission  from  a  foreign  state;  and  it  was  so  interpreted  in  the  case  of 
United  States  v.  Palmer,  3  Wheat.,  610. 


32 


NEUTRALITY   LAWS  OF  THE  UNITED   STATES 


ceive  their  armed  vessels  with  hospitaHty  from  the  distresses  of 
the  sea,  but  to  administer  the  means  of  annoyance  to  none ;  to 
establish  in  our  harbors  such  a  police  as  may  maintain  law  and 
order;  to  restrain  our  citizens  from  embarking  individually  in  a 
war  in  which  their  country  takes  no  part ;  to  punish  severely  those 
persons,  citizen  or  alien,  who  shall  usurp  the  cover  of  our  flag 
for  vessels  not  entitled  to  it,  infecting  thereby  with  suspicion  those 
of  real  Americans  and  committing  us  into  controversies  for  the 
redress  of  wrongs  not  our  own ;  to  exact  from  every  nation  the 
observance  toward  our  vessels  and  citizens  of  those  principles 
and  practices  which  all  civilized  people  acknowledge ;  to  merit 
the  character  of  a  just  nation,  and  maintain  that  of  an  independ- 
ent one,  preferring  every  consequence  to  insult  and  habitual 
wrong.  Congress  will  consider  whether  the  existing  laws  enable 
us  efficaciously  to  maintain  this  course  with  our  citizens  in  all 
places  and  with  others  while  within  the  limits  of  our  jurisdiction, 
and  will  give  them  the  new  modifications  necessary  for  these 
objects.^ 


Neutrality    in 
relation  to  South 
American 
colonial  wars. 


Miranda's 
expedition. 


The  wars  of  the  South  American  provinces  to  secure  their  inde- 
pendence opened  up  a  new  period  in  the  history  of  the  neutrality  laws 
of  the  United  States.  The  collapse  of  the  Spanish  monarchy  in 
1808  and  the  establishment  of  Joseph  Bonaparte  upon  the  throne 
loosened  the  bond  between  the  Spanish  colonies  and  their  mother 
country,  and  one  after  another  they  threw  ofif  their  allegiance  and  set 
up  independent  governments  of  their  own.  For  fifteen  years  the 
struggle  continued,  and  it  was  natural  that  the  sympathies  of  the 
United  States  as  a  nation,  and  especially  of  its  citizens  as  individuals, 
should  have  gone  out  to  those  who  were  following  the  example  set 
by  the  United  States  in  1776.  It  was  doubtless  in  many  cases  not 
only  the  cause  of  liberty  which  induced  American  adventurers  to  take 
part  in  the  struggle,  but  the  opportunity  thereby  offered  of  sharing 
in  the  rich  harvest  of  plunder  to  be  obtained  by  preying  upon  the 
commerce  of  Spain.  While  the  government  of  the  United  States  ■ 
strictly  refrained,  from  giving  any  aid  to  the  struggling  colonies,  it 
found  great  difficulty  in  preventing  individual  citizens  from  taking  up 
the  cause  of  the  revolutionists. 

In  1806,  two  years  before  the  overthrow  of  the  Bourbon  dynasty, 
a  serious  complication  had  arisen  between  the  United  States  and  Spain 
growing  out  of  the  alleged  failure  on  the  part  of  the  United  States  to 
observe  its  duties  as  a  neutral.  Francesco  de  Miranda,  a  native  of 
Caracas,  had  for  many  years  been  endeavoring  to  obtain  the  support 
of  England,  France  and  the  United  States  for  the  furtherance  of  his 


^Richardson's  Messages,  I,  361. 


HISTORY   OF   THE    NEUTRALITY    LAWS  33 

schemes  for  the  liberation  of  the  South  American  colonies.  In  Feb- 
ruary, 1806,  a  military  expedition  organized  in  New  York  by  Miranda 
set  sail  in  a  ship  named  the  Leander  and  proceeded  to  the  northern 
coast  of  South  America.  On  April  1st  of  the  following  year  the  expe- 
dition encountered  the  Spanish  fleet,  and  two  schooners  accompanying 
the  Leander  were  captured.  On  board  these  schooners  were  thirty- 
six  Americans,  who  were  convicted  of  piracy  by  a  Spanish  tribunal  and 
imprisoned  at  Carthagena.  On  September  16,  1808,  these  prisoners 
presented  a  petition  to  Congress  stating  that  they  had  been  entrapped 
into  the  service  of  General  Miranda  by  assurances  from  him  that  they 
were  to  be  employed  in  the  service  of  the  United  States  under  the 
authority  of  the  government ;  moreover,  they  had  no  opportunity,  they 
said,  to  escape  from  the  service  of  Miranda  once  they  were  on  board 
the  ship.^  The  release  of  the  prisoners  was  secured  at  the  interven- 
tion of  the  government.  In  the  meantime,  Samuel  Ogden,  the  owner 
of  the  Leander,  and  Colonel  W.  S.  Smith,  surveyor  of  the  port  of 
New  York,  were  prosecuted  for  violating  the  Neutrality  Act  of  1794 
by  setting  on  foot  an  armed  expedition.  The  defendants  set  up  the 
allegation  that  the  expedition  had  been  begun  with  the  knowledge  of 
the  government,  and  they  summoned  as  witnesses  the  Secretary  of 
State  and  other  officers.  The  court  refused  to  enforce  the  summons 
on  the  ground  that  the  act  of  the  defendants  was  equally  in  violation 
of  the  statute,  whether  sanctioned  by  the  President  or  not.  In  spite 
of  the  evidence  produced  and  of  the  charge  of  the  judge  against  the 
defendants,  the  jury  returned  a  verdict  of  not  guilty.-  On  November 
27th  of  the  same  year  (1806),  President  Jefferson  issued  a  proclama-  Neutrality  procla- 
tion  declaring  that  information  had  been  received  of  preparations  for  "^^*'°"  °^  ^^^• 
an  expedition  against  the  dominions  of  Spain  and  warning  all  persons 
against  taking  any  part  in  it.  The  proclamation  was  a  public  answer  to 
the  charges  made  against  Jefferson  that  the  expedition  led  by  Miranda 
had  been  organized  with  the  knowledge  and  sympathy  of  the 
executive. 

Seven  years  later,  on  September  1,  1815,  when  the  revolutionary  Proclamation 
wars  of  the  South  American  colonies  were  at  their  height,  President 
Madison  issued  a  proclamation  directed  to  the  same  end  as  that  of 
Jefferson.  The  Bourbon  dynasty  had  been  restored,  and  diplomatic 
relations  were  renewed  between  the  United  States  and  Spain  in 
December  of  the  same  year.  The  Spanish  minister,  Luis  de  Onis,  who 
had  long  been  resident  in  the  United  States  as  a  private  citizen  and 

Mm.  State  Papers,  For.  Re!.,  Ill,  257. 

^United  States  v.  Smith,  27    Fed.  Cases,  No.  16,342a. 


34  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

who  had  kept  a   record   of   violations  of   the  neutrality   laws,   now 
began  to  force  these  facts  upon  the  attention  of  the  administration. 
Complaints  of  In  a  letter  addressed  to  the  Secretary  of  State  on  December  30,  1815, 

he  instances  a  long  series  of  breaches  of  neutrality.  It  was,  he  said, 
"universally  public  and  notorious"  that  bands  of  insurgents  in  the 
province  of  Louisiana  kept  up  an  "uninterrupted  system  of  raising  and 
arming  troops  to  light  the  flame  of  revolution  in  the  kingdom  of  New 
Spain;"  enlistments  were  being  publicly  made,  and  arms  transported. 
There  was,  he  said,  at  that  time  a  minister  of  the  insurrectionary 
Mexican  Congress  in  New  Orleans  who  had  delivered  fifteen  hundred 
blank  commissions  to  be  given  to  officers  recruited  in  the  United 
States.  He  then  requested  the  President  to  give  orders  that  the  col- 
lectors of  customs  should  refuse  to  admit  into  the  ports  of  the  United 
States  vessels  bearing  the  flag  of  the  insurrectionary  colonies.^  In 
his  reply  on  January  19,  1816,  Secretary  of  State  Monroe  called 
attention  to  the  fact  that  Spain  had  long  neglected  to  indemnify  the 
United  States  for  the  losses  suffered  by  its  merchant  marine  at  the 
hands  of  Spain.  Moreover,  there  was  no  evidence  forthcoming  of 
any  such  expeditions  as  those  complained  of ;  there  was  nothing  in  the 
law  of  nations  to  require  the  United  States  to  punish  Spanish  citizens 
for  crimes  committed  outside  the  jurisdiction  of  the  United  States. 
In  reply  to  the  demand  that  the  ships  of  the  insurgents  be  excluded 
from  the  ports  of  the  United  States,  Monroe  infoixTied  the  minister 
that,  owing  to  the  frequent  changes  of  the  ruling  authority  in  the 
Spanish  colonies,  the  President  had  given  orders  to  the  collectors  of 
customs  "not  to  make  the  flag  of  any  vessel  a  criterion  or  condition 
of  its  admission  into  the  ports  of  the  United  States."^  In  order  to 
ascertain  the  facts  of  the  case,  Monroe  applied  to  the  United  States 
district  attorney  in  Louisiana,  who  answered  that  while  attempts  at 
arming  and  increasing  the  force  of  vessels  had  been  frequent,  they  had 
beeii  "in  no  instance  successful,  except  where  conducted  under  circum- 
stances of  concealment  that  eluded  discovery  and  almost  suspicion,  or 
where  carried  on  at  some  remote  point  of  the  coast  beyond  the  reach  of 
detection  or  discovery."  He  enclosed  a  list  of  eight  persons  who  had 
been  prosecuted  during  the  year  1815,  of  six  vessels  libelled  for  illegal 
outfits,  and  of  nine  vessels  restored  to  their  owners  because  the  ships 
which  captured  them  had  been  armed  or  had  increased  their  force 
within  the  waters  of  the  United  States.^ 

^Am.  State  Papers,  For.  Re!.,  IV,  423. 
Hbid.  425. 
3Ibid.  432. 


HISTORY   OF   THE    NEUTRALITY    LAWS  35 

On  December  20th  of  the  same  year,  the  Portuguese  minister,  Complaints  of 
Correa  de  Serra,  wrote  to  Monroe  complaining  that  privateers  were  °^  "^^  • 
being  fitted  out  in  American  ports  and  were  in  many  cases  officered 
and  manned  by  Americans.  While  acquitting  the  government  of  any 
neglect  to  punish  the  offenders,  he  suggested  that  the  difficulty  lay  in 
the  failure  of  the  law  of  1794  to  provide  measures  of  prevention. 
^'I  am,"  he  said,  "persuaded  that  my  magnanimous  sovereign  will 
receive  a  more  dignified  satisfaction  and  worthier  of  his  high  char- 
acter, by  the  enactment  of  such  laws  by  the  United  States  as,  insuring 
the  respect  due  to  his  flag  in  the  future,  would  show  their  regard  for 
His  Majesty,  than  in  the  punishment  of  a  few  obscure  offenders."^ 

On  December  26,  1816,  President  Madison  communicated  the  fol-   Need  of  fur- 
lowing  message  to  Congress:  legislation. 

It  is  found  that  the  existing  laws  have  not  the  efficacy  neces- 
sary to  prevent  violations  of  the  obligations  of  the  United  States 
as  a  nation  at  peace  towards  belligerent  parties,  and  other  unlaw- 
ful acts  on  the  high  seas,  by  armed  vessels  equipped  within  the 
waters  of  the  United  States. 

With  a  view  to  maintain  more  effectually  the  respect  due  to  the 
laws,  to  the  character,  and  to  the  neutral  and  pacific  relations  of 
the  United  States,  I  recommend  to  the  consideration  of  Congress 
the  expediency  of  such  further  legislative  provisions  as  may  be 
requisite  for  detaining  vessels  actually  equipped,  or  in  a  course 
of  equipment,  with  a  warlike  force,  within  the  jurisdiction  of  the 
United  States ;  or,  as  the  case  may  be,  for  obtaining  from  the 
owners  or  commanders  of  such  vessels  adequate  securities  against 
the  abuse  of  their  armaments,  with  the  exceptions  in  such  pro- 
visions proper  for  the  cases  of  merchant  vessels  furnished  with 
the  defensive  armaments  usual  on  distant  and  dangerous  expedi- 
tions, and  of  a  private  commerce  in  military  stores  permitted  by 
our  laws,  and  which  the  law  of  nations  does  not  require  the 
United  States  to  prohibit.^ 

In  response  to  the  call  from  the  President,  Mr.  Forsyth,  the  Chair- 
man of  the  Committee  on  Foreign  Relations  of  the  House  of  Repre- 
sentatives, inquired  of  the  Secretary  of  State  what  information  had 
been  given  to  the  Department  of  State  of  the  arming  of  vessels  of  war 
in  the  ports  of  the  United  States,  what  prosecutions  had  been  com- 
menced under  the  existing  laws,  what  persons  prosecuted  had  been 
discharged  "in  consequence  of  the  defects  of  the  laws  now  in  force," 

^See  note  by  A.  H.  Dana  in  his  edition  of  Wheaton's  International  Law,  541. 
2^m.  State  Papers,  For.  Rel,  IV,  103. 


36  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

and  what  those  defects  were.     On  January  6,  1817,  the  Secretary  of 
State,  Mr,  Monroe,  repHed  as  follows: 

Monroe's   recom-  Having  communicated  to  you,  verbally,  the  information  asked 

mendations.  foj-  ^y  your  letter  of  the   1st  instant,   except  so  far  as   relates 

to  the  last  inquiry  it  contains,  I  have  now  the  honor  to  state, 
that  the  provisions  necessary  to  make  the  laws  effectual  against 
fitting  out  armed  vessels  in  our  ports,  for  the  purpose  of  hostile 
cruising,  seem  to  be — 

1st.  That  they  should  be  laid  under  bond  not  to  violate  the 
treaties  of  the  United  States,  or  the  obligations  of  the  United 
States  under  the  law  of  nations,  in  all  cases  where  there  is  rea- 
son to  suspect  such  a  purpose  on  foot,  including  the  cases  of 
vessels  taking  on  board  arms  and  munitions  of  war,  applicable  to 
the  equipment  and  armament  of  such  vessels,  subsequent  to  their 
departure. 

2d.  To  invest  the  collectors,  or  other  revenue  officers  where 
there  are  no  collectors,  with  power  to  seize  and  detain  vessels 
under  circumstances  indicating  strong  presumption  of  an  intended 
breach  of  the  law :  the  detention  to  take  place  until  the  order  of 
the  Executive,  on  a  full  representation  of  the  facts  had  thereupon, 
can  be  obtained.  The  statute  book  contains  analogous  powers 
to  this  above  suggested.  (See  particularly  the  eleventh  section 
of  the  act  of  Congress  of  April  25,  1808.) 

The  existing  laws  do  not  go  to  this  extent.  They  do  not  au- 
thorize the  demand  of  security  in  any  shape,  or  any  interposition 
on  the  part  of  the  magistracy  as  a  preventive,  where  there  is 
reason  to  suspect  an  intention  to  commit  the  offence.  They  rest 
upon  the  general  footing  of  punishing  the  offense  merely  where, 
if  there  be  full  evidence  of  the  actual  perpetration  of  the  crime, 
the  party  is  handed  over,  after  the  trial,  to  the  penalty  de- 
nounced.^ 

Four  days  later  Mr.  Monroe  supplemented  the  above  letter  by  an- 
other in  which  he  details  some  of  the  methods  by  which  the  existing 
laws  of  neutrality  were  being  evaded.  Vessels  had  been  armed  and 
equipped  in  the  ports  of  the  United  States  and,  after  clearing  from  the 
port  as  merchant  vessels,  had  hoisted  the  flag  of  the  insurgent  colonies ; 
foreign  vessels  had  entered  the  ports  of  the  United  States  and  had 
augmented  their  armaments  "with  pretended  commercial  views"  and 
had  taken  on  board  citizens  of  the  United  States  as  passengers  who, 
on  their  arrival  at  a  neutral  port,  assumed  the  character  of  officers 
and  soldiers  in  the  service  of  the  insurgents.- 

^Am.  State  Papers,  For.  Rel,  IV,  103. 
^Ihid.  104. 


HISTORY   OF   THE    NEUTRALITY    LAWS  37 

On  January  24th  Mr.  Forsyth  presented  a  draft  of  a  bill  incor-  Bill  to  prevent 
porating  the  suggestions  contained  in  the  President's  letter  of  January  ^  ?  *""^^ 
6th,  and  introducing  a  further  clause  prohibiting  the  sale  of  vessels  of 
war.  In  presenting  the  report  of  the  committee  Mr.  Forsyth  said: 
"There  was  no  provision  in  either  [the  Act  of  1794  or  the  Act  of  1797] 
to  forbid  a  citizen  from  arming  and  equipping  a  vessel  within  the 
United  States,  and  then  selling  it  to  a  foreigner  to  be  taken  out  of  the 
United  States  and  used  contrary  to  law.  In  other  words,  the  citizen 
and  foreigner  may  do  that  conjointly  which  neither  of  them  could 
separately  do  under  the  former  laws.  To  remedy  that  defect,  the 
first  section  of  the  bill  now  before  the  House  was  framed."^ 

The  original  title  of  the  bill  was  as  follows: 

A  bill  to  prevent  citizens  of  the  United  States  from  selling  ves- 
sels of  war  to  the  citizens  or  subjects  of  any  foreign  Power,  and 
more  effectually  to  prevent  the  arming  and  equipping  vessels  of 
war  in  the  ports  of  the  United  States  intended  to  be  used  against 
nations  in  amity  with  the  United  States. 

Sec.  1  read  as  follows : 

Be  it  enacted,  etc.,  That  if  any  person  shall,  within  the  limits 
of  the  United  States,  fit  out  and  arm,  or  attempt  to  fit  out  and 
arm,  or  procure  to  be  fitted  out  and  armed,  or  shall  knowingly 
aid  or  be  concerned  in  the  furnishing,  fitting  out,  or  arming  any 
private  ship  or  vessel  of  war,  or  sell  the  said  vessel,  or  contract 
for  the  sale  of  the  said  vessel,  to  be  delivered  in  the  United  States, 
or  elsewhere,  to  the  purchaser,  with  intent  or  previous  knowledge 
that  the  said  vessel  shall  or  will  be  employed  to  cruise  or  commit 
hostilities.      .      .      .^ 

Sec.  2  embodied  the  suggestion  contained  in  Monroe's  letter  of  Requirement 
January  6th,  that  armed  vessels  should  be  laid  under  bond  in  cases  °  °"  ' 
where  there  was  reason  to  suspect  that  they  would  be  used  in  violation 
of  the  neutrality  of  the  United  States,  but  made  the  requirement  of 
bond  guarantee  not  only  that  the  owners  themselves  of  the  armed  ves- 
sel would  not  use  the  vessel  to  commit  hostilities  upon  the  subjects  or 
property  of  a  foreign  prince  or  state,  but  also  that  no  persons  to 
whom  the  owners  might  sell  or  pretend  to  sell  the  vessel  should  em- 
ploy it  for  such  purpose.  In  explaining  this  section  Mr.  Forsyth  said : 
"The  present  laws  were  defective  in  not  authorizing  the  interference 

''^ Annals  of  Congress,  14th  Cong.,  2nd  Sess.,  719. 
Vbid.  768. 


^M2770 


38 


NEUTRALITY   LAW'S  OF  THE  UNITED  STATES 


Detention  of 
vessels. 


Opposition   to 
the  bill. 


of  the  Executive  to  prevent  the  commission  of  the  offence  nor  unless 
there  was  sufficient  proof  to  justify  punishment  for  commission  of  the 
offense."  Why,  it  was  asked,  was  the  provision  made  general,  thus  in- 
cluding all  armed  ships,  whether  there  was  reason  to  suspect  hostile 
intentions  on  their  part  or  not?^  Because,  said  Mr.  Forsyth,  the  Com- 
mittee was  unwilling  to  throw  on  the  collectors  of  customs  the  respon- 
sibility of  making  discriminations.  "But,"  he  continued,  "inasmuch  as  it 
was  obvious  that  the  evil  would  not  wholly  be  remedied,  without  some 
discretionary  power  being  vested  in  the  collectors,  that  discretion  was 
given  in  the  third  section,  to  restrain  from  sailing  any  vessel  in  such 
condition  as  that,  though  not  armed,  they  may  be  as  soon  as  they  leave 
the  waters  of  the  United  States."^  Thus  Sec.  3  embodied  Monroe's 
suggestion  "to  invest  the  collectors,  or  other  revenue  officers  where 
there  are  no  collectors,  with  power  to  seize  and  detain  vessels  under 
circumstances  indicating  strong  presumption  of  an  intended  breach  of 
the  law."  Sec.  4  merely  prohibited,  "under  any  pretext  whatever,"  the 
arming  and  equipping  of  foreign  vessels  or  the  increasing  of  their 
force  in  the  ports  of  the  United  States. 

In  the  debates  before  the  House  of  Representatives  strong  opposi- 
tion was  manifested  both  against  the  general  principle  of  preventative 
measures,  as  being  in  excess  of  the  standard  of  neutral  duty  acted 
upon  by  other  nations,  and  against  the  provisions  of  the  2nd  and  3rd 
sections  of  the  bill  in  particular.  Warm  sympathy  with  the  cause  of 
the  South  American  colonies  in  their  struggle  for  independence,  and 
sharp  antagonism  towards  Spain  from  the  states  bordering  on  the 
Mississippi,  because  of  the  injuries  received  from  her  in  the  past,  con- 
fused the  issue  and  prevented  a  consideration  of  the  bill  upon  its  own 
merits  as  a  measure  in  accordance  with  the  acknowledged  obligations 
of  neutrality.  With  respect  to  the  2nd  section  it  was  urged  by  Mr. 
Clay,  Speaker  of  the  House,  that  "it  was  not  incumbent  upon  us,  as  a 
neutral  Power,  to  provide,  after  legal  sale  had  been  made  of  an  armed 
vessel  to  a  foreign  subject,  against  an  illegal  use  of  the  vessel."  If 
an  American  citizen  may  lawfully  sell  an  armed  vessel  to  a  foreign 
subject,  other  than  a  subject  of  Spain,  "on  what  ground,"  he  said,  "is 
it  possible,  then,  to  maintain  that  it  is  the  duty  of  the  American  citizen 
to  become  responsible  for  the  subsequent  use  which  may  be  made  of 

^It  was  common  at  that  period  for  vessels  engaged  in  foreign  trade,  es- 
pecially those  engaged  in  the  East  India  trade,  to  carry  more  or  less  arma- 
ment for  protection  against  the  privateers  and  pirates  that  infested  the  trade 
routes. 

^Annals  of  Congress,  14th  Cong.,  2nd  Sess.,  719. 


HISTORY    OF   THE    NEUTRALITY    LAWS  39 

such  vessel  by  the  foreign  subject"?^  A  similar  argument  was  made 
by  Mr.  Calhoun,  who  suggested,  in  addition,  that  the  purchaser  him- 
self be  required  to  give  bond  that  he  would  not  violate  the  neutrality 
of  this  country."  The  result  was  that  an  amendment  to  this  section 
was  agreed  upon  excluding  the  reference  to  "any  person  to  whom  they 
may  sell."  With  respect  to  the  3rd  section  there  were  vigorous  de- 
nunciations of  what  was  considered  the  arbitrary  power  given  to  col- 
lectors of  customs  to  detain  vessels  at  their  discretion.  On  the  other 
hand,  Mr.  Lowndes  thought  that  "the  committee  had  not  gone  far 
enough  in  amending  the  act  of  '94,"  and  that  "the  law  of  '94, 
applying  only  to  the  case  of  war  between  two  independent  States,  it 
ought,  no  doubt,  to  be  extended  to  comprehend  the  contest  referred 
to  between  Spain  and  her  colonies."^ 

In  its  amended  form  the  bill  was  sent  to  the  Senate,  where  it  met  Act  of  March  3, 
with  still  further  alterations.  The  first  of  these  alterations  was  the 
omission  from  Sec.  1  of  the  clause  relating  to  the  sale  of  vessels.  This 
provision  formed  one  of  the  chief  objects  of  the  bill  in  the  mind  of 
Mr.  Forsyth,  and  its  rejection  by  the  Senate  was  destined  to  impair 
seriously  the  strength  of  the  contentions  made  by  the  United  States 
in  the  Alabama  controversy  with  Great  Britain  fifty  years  later.* 
The  bill  as  amended  by  the  Senate  finally  became  an  act  on  March  3, 
1817.  The  act  bore  as  its  title,  "An  Act  more  effectually  to  preserve 
the  neutral  relations  of  the  United  States."^  In  addition  to  Sees.  2 
and  3,  which  were  wholly  new,  the  act  supplemented  the  Act  of  1794 
by  the  introduction  into  Sees.  1  and  4  of  the  clause  "foreign  prince, 
state,  colony,  district,  or  people"  to  replace  "foreign  prince  or  state" 
in  the  corresponding  sections  of  the  Act  of  1794,  as  describing  the 
parties  in  whose  service  the  vessel  must  not  be  fitted  out  and  armed, 
nor  its  force  augmented,  and  against  whom  hostilities  must  not  be 
committed.  It  was,  in  consequence,  no  longer  possible  to  offer,  in 
defense  of  a  prosecution  for  violation  of  the  Act  of  1794,  the  plea 
that  the  vessel  was  armed  in  the  service  of  insurgent  colonies  which 
could  not  properly  be  brought  under  the  designation  "foreign  prince 
or  state" ;  nor,  on  the  other  hand,  could  hostilities  be  committed  against 
such  insurgent  colonies  be  any  longer  excused  on  the  ground  that  they 

'^Annals  of  Congress,  14th  Cong.,  2nd  Sess.,  741. 

^Ibid.  747. 

^Ibid.  755. 

*See  below,  p.  113,  note  3.  * 

63  Stat.  L.,  370. 


1818. 


40  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

were  not  committed  against  any  foreign  prince  or  state.^    The  act  was 
limited  in  duration  to  the  term  of  two  years. 
Act  of  April  20,  On  April  20,   1818,  the  existing  neutrality  acts  were,  with  some 

amendments,  codified  into  a  single  act  which  repealed  all  former  acts. 
The  new  act  was  entitled,  "An  Act  in  addition  to  the  'Act  for  the 
punishment  of  certain  crimes  against  the  United  States,'  and  to  repeal 
the  acts  therein  mentioned,"  The  provisions  of  the  act  are  as  fol- 
lows :' 

Sec.  1  embodies  Sec.  1  of  the  Act  of  1794,  with  the  addition  that 
the  "commission  to  serve  a  foreign  prince  or  state"  is  enlarged  to  in- 
clude "a  foreign  prince,  state,  colony,  district,  or  people"  and  must 
be  exercised  against  a  "prince,  state,  colony,  district,  or  people"  with 
whom  the  United  States  are  at  peace. 

Sees.  2,  3,  5  and  6  embody  Sees.  2,»  3,*  4,"  and  5  of  the  Act  of 
1794  with  a  similar  extension  of  the  words  "foreign  prince  or  state." 
Sees.  1  and  4^  of  the  Act  of  1817  are  thus  reenacted. 

Sees.  4  reenacts  that  part  of  the  Act  of  June  14,  1797,  which  makes 
criminal  the  arming  of  vessels  without  the  limits  of  the  United  States 
with  intent  to  commit  hostilities  upon  the  citizens  of  the  United  States. 
The  omission  of  that  part  of  the  Act  of  1797  which  related  to  hostili- 
ties committed  upon  the  "subjects,  citizens  or  property  of  any  prince 
or  state  with  whom  the  United  States  are  at  peace"  marks  the  aban- 
donment of  an  attempt  on  the  part  of  the  United  States  to  control  the 

ipor  an  instance  in  which  such  a  plea  was  sustained,  see  the  case  of  Gelston 
V.  Hoyt,  3  Wheat.,  246.     See  below,  p.  74. 

2For  the  full  text  of  the  act,  see  App.,  p.  176. 

sWith  the  omission,  however,  of  the  proviso  of  Sec.  2  of  the  Act  of  1794 
to  the  effect  that  persons  would  be  exempt  from  punishment  under  the  statute 
if  within  thirty  days  after  enlistment  they  should  discover  upon  oath  the 
persons  by  whom  they  were  enlisted. 

*The  clause  "within  any  of  the  ports,  harbors,  bays,  rivers,  or  other  waters" 
of  the  Act  of  1794  was  changed  to  "within  the  limits  of  the  United  States" 
in  the  Act  of  1818.  The  penalty  was  made  ten  thousand  dollars  instead  of 
five  thousand  dollars. 

sWith  the  addition  of  the  clause  "or  by  changing  those  on  board  of  her 
for  guns  of  a  larger  calibre"  to  replace  the  word  "size"  in  the  clause  "by 
adding  to  the  number  or  size  of  the  guns  of  such  vessel." 

6By  what  was  clearly  an  oversight,  Sec.  4  of  the  Act  of  1817  failed  to  pro- 
hibit a  foreign  prince  or  state  from  augmenting  the  force  of  their  ships  of 
war  to  commit  hostilities  against  a  colony,  district,  or  people.  An  attempt 
was  made  to  remedy  the  defect  in  December,  1817,  when  it  was  asserted  m 
the  House  of  Representatives  that  "the  vessels  of  Old  Spain  might  now  enter 
our  harbors  and  increase  their  force,  while  those  of  the  colonies  were  pro- 
hibited from  so  doing."  Annals  of  Congress,  15th  Cong.,  1st  sess.,  519. 
The  defect  was  finally  remedied  in  the  Act  of  1818. 


HISTORY    OF   THE    NEUTRALITY    LAWS  41 

acts  of  its  citizens  committed  outside  of  its  jurisdiction  against  others 
than  its  own  citizens.^ 

Sees.  7,  8  and  9  embody  Sees.  6,  7  and  8  of  the  Act  of  1794. 

Sees.  10  and  11  reenact  Sees.  2-  and  3^  of  the  Act  of  1817  requiring 
vessels  to  give  bond  and  empowering  collectors  to  detain  suspicious 
vessels. 

Sec.  12  repeals  the  previous  Acts  of  1794,  1797  and  1817. 

Sec.  13  reenacts  Sec.  9  of  the  Act  of  1794. 

The  Act  of  1818  represents  the  present  law  of  the  United  States  Revised  Statutes, 
upon  the  subject  of  neutrality.  The  provisions  of  the  act  are  now  ^^'^^-  ^'^^^'^ 
contained  in  the  Revised  Statutes  of  the  United  States  under  Sees. 
5281-5291.  Apart  from  certain  verbal  alterations  required  by  the 
form  of  the  Revised  Statutes,  the  only  change  in  arrangement  con- 
sists in  including  the  original  Sees.  7  and  8  under  Sec.  5287,  and  in 
making  a  new  section  (5291)  of  the  proviso  contained  in  the  original 
Sec  2. 

On  March  3,  1819,  Congress  passed  "An  Act  to  protect  the  com- 
merce of  the  United  States  and  to  punish  the  crime  of  piracy"  which 
has  been  referred  to  as  supplementing  the  Act  of  1818,  but  which  is  con- 
nected with  that  act  only  by  the  circumstances  of  its  origin,  not  by 
the  subject  matter  with  which  it  deals. 

In  the  autumn  of  1837,  when  the  relations  between  the  United  States  Canadian  rebel- 
and  Great  Britain  were  already  greatly  strained  by  disputes  over  the 
northeast  and  northwest  boundaries  between  the  United  States  and 
Canada,  the  people  of  Lower  and  Upper  Canada  rose  in  rebellion 
against  Great  Britain  and  appealed  to  the  citizens  of  the  United  States 

iln  explaining  the  provisions  of  the  bill  which,  in  an  amended  form,  became 
later  the  act  of  1818,  the  Chairman  of  the  Committee  on  Foreign  Relations 
said  that  the  bill  "removed  certam  provisions  of  the  Act  of  1797,  which  bore 
exclusively  on  that  cause  [of  the  South  American  patriots],  denouncing  the 
severest  penalties  against  those  who  aid  them."  Ibid.  1404.  A  motion  then 
made,  in  favor  of  the  omission  from  the  bill  of  a  provision  making  it  penal 
for  any  citizen  to  fit  out  or  arm,  without  the  jurisdiction  of  the  United  States, 
any  vessel  with  intent  to  commit  hostilities  upon  the  subjects  of  a  friendly 
state,  is  thus  described :  "This  motion  produced  a  good  deal  of  debate, 
principally  on  the  expediency  of  striking  out  the  whole  section,  and  on  the 
impropriety  of  still  retaining  a  feature  in  the  bill  which  would  admit  the 
possibility  of  a  crime  so  monstrous  and  improbable  as  that  of  citizens  going 
abroad  to  commence  war  upon  the  citizens  and  commerce  of  their  own  country, 
and  which,  even  if  committed,  would  be  punishable  either  as  treason  or  piracy." 
Ibid.  1404. 

^With  the  omission,  however,  of  the  clause  "or  in  aiding,  or  cooperating  in 
any  warlike  measure"  which  followed  the  clause  "that  the  said  ship  or  vessel 
shall  not  be  employed  by  such  owners  in  cruising  or  committing  hostilities," 
in  the  Act  of  1817. 


42 


NEUTRALITY   LAWS  OF  THE  UNITED   STATES 


Van  Buren's 
proclamation 
and  request 
for   legislation. 


across  the  border  for  aid  in  their  revolt.  Public  feeling  in  the  United 
States  along  the  border  was  aroused;  mass  meetings  were  held  and 
votes  of  sympathy  passed;  volunteer  companies  were  organized  and 
drilled ;  arms  and  ammunition  were  collected  and  subscriptions  of 
money  were  raised.  Navy  Island  on  the  Canadian  side  of  the  Niagara 
River  was  occupied  by  the  patriots,  and  volunteers  from  the  United 
States  crossed  over  in  large  numbers  to  join  their  ranks.  Prompt  ac- 
tion was  taken  by  the  government.  On  December  7th,  the  Secretary  of 
State  wrote  to  the  governors  of  Vermont,  New  York,  and  Michigan 
requesting  them  to  secure  the  arrest  of  all  persons  engaged  in  prepa- 
rations of  a  hostile  character  against  the  territory  of  Great  Britain.^  On 
the  night  of  December  28th,  an  English  officer  at  the  head  of  a  party  of 
loyalist  volunteers  crossed  the  Niagara  River  and  captured  a  small 
steamer  called  the  Caroline  moored  at  Schlosser  on  the  American  side 
of  the  river.  Several  Americans  were  either  killed  or  wounded  in  the 
affray.  After  the  crew  and  passengers  had  been  dispersed,  the  vessel 
was  set  on  fire  and  turned  adrift  in  the  current  just  above  the  falls. 
The  excitement  created  along  the  American  border  was  intense,  and 
the  local  authorities  found  it  difficult  to  restrain  the  citizens  from  re- 
sorting to  arms  to  revenge  the  invasion  of  American  territory.  General 
Winfield  Scott  was  ordered  to  repair  without  delay  to  the  Canadian 
frontier  and  assume  military  command  there.  On  January  5th,  Presi- 
dent Van  Buren  issued  a  proclamation  in  which,  after  adverting  to  the 
fact  that,  notwithstanding  the  proclamations  of  the  state  governors^ 
arms  and  ammunition  were  being  procured  in  the  United  States  and 
a  military  force  organized,  he  gave  warning  that  "any  persons  who 
shall  compromit  the  neutrality  of  this  Government  by  interfering  in 
an  unlawful  manner  with  the  afifairs  of  the  neighboring  British  Prov- 
inces will  render  themselves  liable  to  arrest  and  punishment  under 
the  laws  of  the  United  States,  which  will  be  rigidly  enforced. "^  On 
the  same  day,  the  President  sent  a  special  message  to  Congress  in 
which  he  called  the  attention  of  Congress  to  the  fact  that  "recent  ex- 
perience on  the  southern  boundary  of  the  United  States  and  the  events 
now  daily  occurring  on  our  northern  frontier  have  abundantly  shown 
that  the  existing  laws  are  insufficient  to  guard  against  hostile  invasion 
from  the  United  States  of  the  territory  of  friendly  and  neighboring 
nations."  His  comment  on  the  laws  was  as  follows :  "The  laws  in  force 
provide  sufficient  penalties  for  the  punishment  of  such  offenses  after 
they  have  been  committed,  and  provided  the  parties  can  be  found,  but 

iSee  McMaster,  A  History  of  the  American  People.  VI,  434-436. 
^Richardson's  Messages,  III,  481. 


1838. 


HISTORY    OF   THE    NEUTRALITY    LAWS  43 

the  Executive  is  powerless  in  many  cases  to  prevent  the  commission 
of  them,  even  when  in  possession  of  ample  evidence  of  an  intention 
on  the  part  of  evil-disposed  persons  to  violate  our  laws."  He  then 
declared  "that  the  Executive  ought  to  be  clothed  with  adequate  power 
effectually  to  restrain  all  persons  within  our  jurisdiction  from  the  com- 
mission of  acts  of  this  character"  and  recommended  "a  careful  re- 
vision of  all  the  laws  now  in  force."^ 

Two  months  later,  on  March  10,  1838,  Congress  passed  an  act  Act  of  March  10, 
intended  to  supplement  the  Act  of  1818.^  Sec.  1  of  the  act  empowers 
and  requires  the  officers  of  the  United  States  therein  enumerated  "to 
seize  and  detain  any  vessel  or  any  arms  or  munitions  of  war  which 
may  be  provided  or  prepared  for  any  military  expedition  or  enter- 
prise against  the  territory  or  dominions  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people  conterminous  with  the  United 
States  and  with  whom  they  are  at  peace"  and  to  "retain  possession  of 
the  same  until  the  decision  of  the  President  be  had  thereon,  or  until 
the  same  shall  be  released  as  hereinafter  directed."  Sec.  2  authorizes 
and  requires  the  several  officers  "to  seize  any  vessel  or  vehicle,  and  all 
arms  or  munitions  of  war,  aboMt  to  pass  the  frontier  of  the  United 
States  for  any  place  within  any  foreign  state,  or  colony,  conterminous 
with  the  United  States,  where  the  character  of  the  vessel  or  vehicle, 
and  the  quantity  of  arms  and  munitions,  or  other  circumstances  shall 
furnish  probable  cause  to  believe  that  the  said  vessel  or  vehicle,  arms 
or  munitions  of  war  are  intended  to  be  employed  by  the  owner  or 
owners  thereof,  or  any  other  person  or  persons,  with  his  or  their 
privity,  in  carrying  on  any  military  expedition  or  operations  within 
the  territory  or  dominions  of  any  foreign  prince  or  state,  or  any 
colony,  district  or  people  conterminous  with  the  United  States,  and 
with  whom  the  United  States  are  at  peace,  and  detain  the  same  until 
the  decision  of  the  President  be  had  for  the  restoration  of  the  same, 
or  until  such  property  shall  be  discharged  by  the  judgment  of  a  court 
of  competent  jurisdiction."  A  provision,  however,  is  added: — "That 
nothing  in  this  act  contained  shall  be  construed  to  extend  to,  or  inter- 
fere with  any  trade  in  arms  or  munitions  of  war,  conducted  m  vessels 
by  sea,  with  any  foreign  port  or  place  whatsoever,  or  with  any  other 
trade  which  might  have  been  lawfully  carried  on  before  the  passage 
of  this  act,  under  the  law  of  nations  and  the  provisions  of  the  act 
hereby  amended."     Succeeding  sections  provide  the  procedure  neces- 

iRichardson's  Messages,  III,  399. 

2For  the  text  of  the  act,  see  App.,  p.  179. 


44 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Van  Buren's 
second    proclama- 
tion. 


Proclamation  of 
1841. 


sary  to  the  carrying  out  effectively  of  the  foregoing  sections.  The 
act  is  hmited  by  its  terms  to  a  period  of  two  years. 

It  will  be  observed  that  the  act,  although  not  framed  in  clear  and 
precise  terms,  makes  a  considerable  advance  in  some  respects  over  the 
Act  of  1818.  It  not  only  enlarges  the  preventive  powers  of  the  govern- 
ment, but  makes  the  scope  of  their  exercise  more  comprehensive.  The 
Act  of  1818  permitted  the  detention  of  a  vessel  only  when  manifestly 
built  for  warlike  purposes  and  when  carrying  a  cargo  consisting  prin- 
cipally of  arms  and  munitions  of  war.  The  Act  of  1838  empowers  the 
officers  of  the  government  to  detain  "any  vessel"  prepared  for  a  mili- 
tary expedition  against  the  territory  of  a  foreign  state  conterminous 
with  the  United  States ;  arms  or  munitions  of  war  may  be  detained  in 
a  similar  case  (Sec.  1),  Moreover,  not  only  vessels  but  vehicles  may 
be  detained,  as  well  as  arms  and  munitions  of  war,  when  about  to 
pass  the  frontier  under  circumstances  furnishing  probable  cause  that 
the  articles  are  to  be  used  in  carrying  on  a  military  expedition  against 
the  territory  of  a  state  conterminous  with  the  United  States  (Sec.  2). 
Sec.  2  appears  to  add  nothing  to  Sec.  1,  for  it  would  seem  that  if  the 
officer  detaining  the  vessel,  vehicle,  etc.,  that  is  about  to  pass  the  bor- 
der, is  able  to  find  evidence  of  a  probable  intent  to  employ  them 
wrongfully  he  might  equally  well  assert  that  they  were  prepared  for 
a  military  expedition. 

On  November  21st  of  the  same  year,  the  President  issued  a  second 
proclamation  reiterating  the  "solemn  warning"  given  in  the  previous 
proclamation.^  The  occasion  which  called  forth  the  proclamation  was 
an  attempted  invasion  of  Canada  on  the  part  of  members  of  a  society 
called  the  "Hunters."  A  force  crossed  the  border  from  Ogdensburg, 
but  their  expedition  utterly  failed  owing  to  the  action  of  the  United 
States  officials  in  cutting  off  their  supplies  and  seizing  their  steam- 
boats. 

During  the  summer  of  1841,  public  feeling  against  England  was 
greatly  aroused  along  the  Canadian  border  as  a  result  of  the  trial 
of  Alexander  McLeod,  a  Canadian,  for  the  murder,  in  1837,  of  a  mem- 
ber of  the  crew  of  the  Caroline.  The  Hunters'  lodges  were  again 
active  in  endeavoring  to  further  the  revolt  against  Great  Britain.  On 
September  25th,  President  Tyler  issued  a  proclamation  in  which, 
after  adverting  to  the  fact  that  "it  has  come  to  the  knowledge  of  the 
United  States  that  sundry  secret  lodges,  clubs,  or  associations  exist 
on  the  northern  frontier;  that  the  members  of  these  lodges  are  bound 


^Richardson's  Messages,  III.,  482. 


HISTORY    OF   THE    NEUTRALITY    LAWS 


45 


together  by  secret  oaths ;  that  they  have  collected  firearms,  and  other 
military  materials,  and  secreted  them  in  sundry  places ;  and  that  it  is 
their  purpose  to  violate  the  laws  of  their  country,  by  making  military 
and  lawless  incursions,  when  opportunity  shall  offer,  into  a  territory 
of  a  power  with  which  the  United  States  are  at  peace,"  he  admonishes 
"all  such  evil-minded  persons  of  the  condign  punishment  which  is 
certain  to  overtake  them;  assuring  them  that  the  laws  of  the  United 
States  will  be  rigorously  executed  against  their  illegal  acts."' 

From  1849  to  1851  there  were  several  filibustering  expeditions  or-  Proclamation  of 
ganized  in  the  United  States  for  the  aid  of  insurgents  in  Cuba.  Two  fiijbus^tfdng! 
of  these  were  under  the  Spanish  general,  Narcisco  Lopez.  Moreover, 
a  strong  pro-slavery  interest  on  the  part  of  the  southern  states  advo- 
cated the  acquisition  of  the  island  and  was  responsible  for  the  encour- 
agement given  to  expeditions  in  violation  of  the  neutrality  laws  of  the 
United  States.  On  August  11,  1849,  President  Taylor  issued  a  proc- 
lamation in  which  he  announces  that  "there  is  reason  to  believe  that 
an  armed  expedition  is  about  to  be  fitted  out  in  the  United  States  with 
an  intention  to  invade  the  island  of  Cuba  or  some  of  the  Provinces 
of  Mexico."  In  view  of  the  situation,  the  usual  warning  is  given  that 
all  who  participate  in  the  enterprise  will  be  subject  to  the  heavy  penal- 
ties of  the  neutrality  laws  and  will  forfeit  a  claim  to  the  protection 
of  their  country.^  Nevertheless,  in  May  of  the  following  year,  Lopez 
left  New  Orleans  in  a  steamer  with  about  500  men. 

A  similar  proclamation  was  issued  by  President  Fillmore  on  April  Proclamations 
25,  1851,  in  which  he  states  that  "it  is  believed  that  this  expedition  is  °^  ^^^^• 
instigated  and  set  on  foot  chiefly  by  foreigners  who  dare  to  make  our 
shores  the  scene  of  their  guilty  and  hostile  preparations  against  a 
friendly  power."^     Once  more,  however,  Lopez  succeeded  in  leaving 
New  Orleans  in  August,  1851,  with  a  body  of  400  men. 

On  October  22d  following,  the  President  issued  a  second  proclama- 
tion specifically  directed  against  an  expedition  which  he  had  reason 
to  believe  was  being  fitted  out  against  Mexico.*  In  his  inaugural  ad- 
dress on  December  2,  1851,  President  Fillmore,  after  describing  the 
expedition  led  by  Lopez  and  the  melancholy  result  which  attended  it, 
speaks  of  the  judgment  passed  upon  the  expedition  by  the  "indignant 
sense  of  the  community."     "If  we  desire/'  he  said,  "to  maintain  our 

iRichardson's  Messages,  IV,  72. 
Hbid.  V,  7. 
Hbid.  V,  111. 
*Ihid.  V,  112. 


46 


NEUTRALITY   LAWS  OF  THE  UNITED   STATES 


Walker's 
expeditions. 


Proclamations 
of  1854-1855. 


Proclamation 
of    1858. 


respectability  among  the  nations  of  the  earth,  it  behooves  us  to  enforce 
steadily  and  sternly  the  neutrality  acts  passed  by  Congress  and  to 
follow  as  far  as  may  be  the  violation  of  those  acts  with  condign  pun- 
ishment *  *  *.  You  will  consider  whether  further  legislation  be 
necessary  to  prevent  the  perpetration  of  such  offenses  in  future.""^ 
Further  legislation  was,  however,  not  enacted. 

In  the  year  1853  an  expedition  was  organized  in  San  Francisco  for 
the  purpose  of  invading  the  Mexican  possessions  in  Lower  California. 
The  leader  of  the  filibusters  was  the  famous  William  Walker,  whose 
expeditions  against  Mexico  and  Central  America  defied  the  neutrality 
laws  of  the  United  States  until  his  death  in  1860.  On  January  18, 
1854,  President  Pierce  issued  a  proclamation  in  view  of  the  informa- 
tion received  by  him  of  this  and  other  prospective  expeditions.^  Again 
on  May  31st  of  the  same  year  he  issued  a  second  proclamation,  warn- 
ing persons  not  to  engage  in  a  military  expedition  which,  it  was  re- 
ported, was  being  organized  and  fitted  out  for  the  invasion  of  Cuba.' 

The  following  year  Walker  undertook  to  lead  an  expedition  from 
San  Francisco  to  support  the  cause  of  one  of  the  belligerent  factions 
in  Nicaragua.  This  expedition  brought  forth  a  third  proclamation 
from  President  Pierce.*  Walker  succeeded  in  making  himself  Presi- 
dent of  Nicaragua  for  a  time^  but  was  driven  from  the  country  in 
1857.  On  returning  to  the  United  States,  he  organized  a  fresh  expedi- 
tion at  New  Orleans  directed  against  Mexico,  Nicaragua  and  Costa 
Rica.  On  November  10th,  he  was  arrested  and  held  to  bail,  but  on  the 
very  next  day  he  embarked  for  Nicaragua  with  300  unarmed  fol- 
lowers. The  expedition  failed  because  of  the  forcible  interference 
of  Commodore  Paulding,  but  Walker  was  soon  at  work  preparing  for 
a  fresh  invasion.  In  view  of  the  information  which  he  said  had 
reached  him  "from  sources  which  I  cannot  disregard,"  President 
Buchanan  issued  a  proclamation  on  October  30,  1858,  a  portion  of 
which  is  important  as  showing  the  detailed  information  possessed  by 
the  government  of  the  projected  expedition.  "The  leaders  of  former 
illegal  expeditions  of  the  same  character  have  openly  expressed  their 
intention  to  renew  hostilities  against  Nicaragua.  One  of  them,  who 
has  already  been  twice  expelled  from  Nicaragua,  has  invited  through 
the  public  newspapers  American  citizens  to  emigrate  to  that  Republic, 
and  has  designated  Mobile  as  the  place  of  rendezvous  and  departure 
and  San  Juan  del  Norte  as  the  port  to  which  they  are  bound.    This 

iRichardson's  Messages,  V,  113. 
Vbid.  V,  271. 
sibid.  V,  272. 
*Ibid.  V,  388. 


HISTORY   OF   THE    NEUTRALITY    LAWS  47 

person,  who  has  renounced  his  allegiance  to  the  United  States  and 
claims  to  be  President  of  Nicaragua,  has  given  notice  to  the  collector 
of  the  port  of  Mobile  that  two  or  three  hundred  of  these  emigrants 
will  be  prepared  to  embark  from  that  port  about  the  middle  of  No- 
vember."^ In  spite,  however,  of  the  call  upon  the  officers  of  the  gov- 
ernment to  be  vigilant  in  suppressing  the  illegal  enterprises,  Walker 
and  his  filibusters  in  fact  embarked  at  Mobile  the  following  December, 
and  again  in  November,  1859,  though  each  time  without  reaching  their 
destination. 

In  March,  1866,  a  decision  was  rendered  in  the  District  Court  for  Decision  in  the 
the  Southern  District  of  New  York  which  is  important  both  because  ^^^  °^  *^^ 
of  the  general  discussion  of  the  extent  of  the  duties  of  a  neutral 
which  followed  it,  and  because  it  was  partly  instrumental  in  bringing 
about  an  attempted  revision  of  the  Neutrality  Act  of  1818.-  On 
January  23,  1866,  the  steamship  Meteor,  lying  in  the  port  of  New 
York,  was  libelled  by  the  District  Attorney  for  having  been  fitted  out 
with  intent  to  be  employed  in  the  service  of  the  governrnent  of  Chile 
to  commit  hostilities  against  the  subjects  of  Spain,  It  appeared  from 
the  evidence  that  the  vessel  had  been  built  for  the  purpose  of  oflFering 
her  to  the  United  States  government  for  use  in  pursuing  Confederate 
cruisers.  Before  she  was  finished  the  need  no  longer  existed,  and 
the  owners  of  the  vessel  later  offered  her  for  sale.  An  accredited 
agent  of  Chile,  in  New  York,  desired  to  purchase  steamers  of  that 
kind,  but  was  unable  to  pay  the  cost  price  demanded  by  the  owners, 
and  the  negotiations  thus  fell  through.  Owing  to  the  furnishing  of 
the  vessel  by  the  owners  with  coal  and  provisions,  which  it  was  al- 
leged was  done  in  pursuance  of  an  agreement  of  sale  to  the  govern- 
ment of  Chile,  a  case  was  made  out  against  the  vessel  and  she  was 
condemned  and  forfeited.  The  opinion  in  the  case  was  rendered  by 
Judge  Betts,  and  his  decision  practically  forbade  the  sale  of  armed 
vessels  to  a  belligerent,  whether  the  vessel  should  be  delivered  in  the 
United  States  or  sent  out  under  contract  of  delivery  in  a  foreign 
port.  It  is  true  that  on  appeal  to  the  Circuit  Court  a  decree  was  en- 
tered reversing  the  decision  of  the  District  Court^  on  the  ground  that 
there  was  not  sufficient  evidence  to  warrant  the  conclusion  reached 
in  the  lower  court,  but  in  the  meantime  the  influence  of  the  decision 
had  made  itself  felt  in  Congress. 

iRichaifdson's  Messages,  V,  496. 

^The  Meteor.    17  Fed.  Cases,  No.  9,498.    For  a  discussion  of  this  case  under 
other  aspects,  see  Chap.  Ill,  pp.  70-72. 
326  Fed.  Cases,  No.  15,760. 


48  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Fenian  invasions  Shortly  after  the  above  decision  was  rendered  a  second  event  took 
Proclamations  of  P'^^^  which  further  influenced  the  action  of  Congress  in  favor  of  a 
1866  and  1870.  revision  of  the  neutrality  laws.     In  May,   1866,  an  Irish-American 

revolutionary  secret  society  under  the  name  of  the  Fenian  Brother- 
hood, which  had  been  founded  in  1858  to  promote  a  world-wide  league 
of  Irishmen  against  British  rule  in  Ireland,  set  on  foot  an  expedition 
against  Canada.  On  the  night  of  May  30,  1866,  a  body  of  men,  about 
1,000  in  number,  crossed  the  Niagara  river  and  captured  Fort  Erie, 
but  they  were  soon  routed  by  a  battalion  of  Canadian  volunteers.  Sev- 
eral days  later,  on  June  6,  President  Johnson  issued  a  proclamation  in 
which  he  recites  that  "certain  evil-disposed  persons  .  .  .  have 
provided  and  prepared,  and  are  still  engaged  in  providing  and  prepar- 
ing^ means  for  a  military  expedition  and  enterprise"  to  be  carried  on 
against  Canada,  and  he  concluded  with  the  usual  admonition  and  warn- 
ing.^ The  proclamation  was,  it  is  true,  somewhat  tardy,  and  it  was 
believed  by  some  that  President  Johnson  was  not  indisposed  to  turn 
the  movement  to  account  in  retaliation  for  the  depredations  of  the  Ala- 
bama and  other  Confederate  cruisers  fitted  out  in  English  ports.  In 
answer  to  the  charge,  there  should  be  consulted  a  letter  of  Secretary 
of  State  Seward  to  Charles  Francis  Adams,  minister  to  England,  in 
which  Mr.  Seward  recounts  the  steps  taken  by  the  government  to 
thwart  the  expedition.^  In  fact,  the  remnant  of  the  forces  routed  by 
the  Canadians  surrendered  to  the  United  States  war-ship  Michigan  on 
June  3rd. 

In  April,  1870,  a  second  expedition  organized  in  the  United  States 
by  the  Fenians  crossed  the  Canadian  frontier  near  Franklin,  Vermont, 
but  it  was  easily  dispersed  by  Canadian  troops,  and  the  leader  of  the 
expedition,  John  O'Neill,  was  promptly  arrested  by  the  United  States 
authorities,  acting  under  the  orders  of  General  Grant.  On  May  24th, 
the  President  issued  a  proclamation  directed  to  the  same  end  as  that 
of  President  Johnson  in  1866.^ 
Attempted  revi-  Following  the  suppression  of  the  Fenian  invasion  of  Canada,  the 

sion  of  neutrality  Committee  on  Foreign  Relations  of  the  House  of  Representatives  un- 
dertook  to  revise  the  neutrality  laws  of  the  United  States.  The  origi- 
nal bill,  introduced  on  June  20,  1866,  was  in  the  form  of  an  amend- 
ment to  the  Act  of  1818,  and  merely  provided  that  the  Act  of  1818 
should  not  be  so  construed  as  to  prohibit  citizens  of  the  United  States 
from  selling  vessels,  ships  or  steamers  built  within  the  limits  of  the 

^Richardson's  Messages,  VI,  433. 
2For.  Rel,  1866-67,  Pt.  1,  126. 
sRichardson's  Messages,  VII,  85. 


HISTORY   OF   THE    NEUTRALITY    LAWS  49 

United  States,  or  materials  and  munitions  of  war,  the  growth  or 
products  thereof,  to  inhabitants  of  other  countries  or  to  governments 
not  at  war  with  the  United  States.  On  July  26th  the  Committee,  of 
which  General  Banks  was  the  chairman,  reported  a  wholly  new  bill, 
which  it  offered  as  a  substitute  for  the  Act  of  1818/  The  report  ac- 
companying the  bill  is  a  curious  mixture  of  law  and  sentiment.^  On 
the  point  of  sentiment,  irritation  against  Great  Britain  because  of  her 
alleged  neglect  to  observe  the  duties  of  a  neutral  during  the  Civil 
War,  and  sympathy  with  the  Fenian  movement  in  favor  of  Irish  inde- 
pendence, figure  prominently  in  it,  and  references  are  made  which  sug- 
gest a  regret  on  the  part  of  the  chairman  that  the  execution  of  the 
existing  neutrality  laws  had  hampered  Chile  in  her  war  with  Spain 
in  1865.  On  the  point  of  law,  the  report  attempts  to  show  that  the 
Act  of  1818  was  not  justified  by  the  principles  of  international  law 
nor  by  corresponding  legislation  on  the  part  of  other  nations.  The 
following  general  statements  from  the  report  will  exhibit  the  opinion 
held  by  the  committee : 

There  is  nothing  at  this  time  which  can  justly  compel  the 
United  States  to  enact,  maintain,  or  enforce  principles  of  neu- 
trality which  are  not  accepted  or  acted  upon  by  other  States. 
The  duty  that  neutrality  imposes  is  reciprocal  and  not  arbitrary. 
*  *  *  Its  restrictions  [those  of  the  British  act  of  1819]  upon 
British  subjects  are  nominal  compared  w^ith  those  of  the  Amer- 
ican statute.  *  *  *  The  American  statute  is  not  demanded  by 
international  or  natural  law.  *  *  *  We  can  no  longer  stand 
bail  for  the  peace  of  the  world.^ 

The  chief  features  of  the  bill  were  as  follows:     The  third  section  Reactionary  char- 
of  the  Act  of  1818  was  altered  so  as  to  nullify  the  interpretation  of  ^*^^"  °^  ^^^  ^'"• 

'^Congressional  Globe,  39th  Cong.,   1st  Sess.,  July  26,  1866. 

2See  House  Report  No.  wo,  39th  Cong.,  1st  Sess. 

3In  the  debate  upon  the  bill  on  the  following  day,  General  Banks  gave  two 
statements  of  the  object  of  the  bill.  He  first  said  that  "the  object  of  the  Com- 
mittee has  been  to  scale  the  neutrality  act  of  1818  to  the  standard  of  the  for- 
eign enlistment  act  enacted  by  Great  Britian  in  1819,"  which  was  regarded  as 
much  less  severe  in  its  restrictions  than  the  American  statute.  He  later  said 
that  "the  first  object  of  this  bill  is  to  return  to  the  early  policy  of  the  Gov- 
ernment. Its  provisions  are  substantially  those  of  the  Act  of  1794,  enacted 
under  the  administration  of  Washington.  Of  the  ten  sections  of  this  act,  all 
are  retained  in  this  bill  with  one  exception.  Its  passage  will  bring  our  legis- 
lation back  to  the  policy  of  Washington's  administration.  The  Acts  of  1797, 
1817,  and  1818  were  departures  from  the  policy  of  the  Government,  the  prin- 
ciples ot  international  law,  and  the  legislation  of  every  other  Government. 
This  bill  strikes  from  the  statutes  enacted  since  1794,  the  unnecessary,  unusual, 
and  onerous  restrictions  and  prohibitions  upon  the  commerce  of  the  country 
and  the  power  of  its  people."  Congressional  Globe,  39th  Cong.,  1st  Sess., 
4194,  4197. 


50  NEUTRALITY  LAWS  OF  THE  UNITED   STATES 

the  court  in  the  case  of  the  Meteor  by  requiring  that  a  person,  to  be 
guilty  under  the  particular  clause  of  the  act,  must  be  knowingly  con- 
cerned in  the  furnishing,  fitting  out  and  arming  of  a  vessel,  not  mere- 
ly in  the  furnishing,  fitting  out  or  arming,  as  provided  by  the  Act  of 
1818.  Sec.  4  of  the  Act  of  1818  was  omitted  bodily,  as  likewise  Sec. 
6  relating  to  the  preparation  of  military  expeditions.^  Sec.  7  of  the 
Act  of  1818  was  weakened  by  excepting  its  application  to  military 
expeditions.  Sees.  10  and  11,  relating  to  the  bonding  of  vessels  and 
their  detention  by  the  collectors  of  customs,  were  bodily  omitted,  and 
in  place  of  the  latter  section  was  substituted  a  section  providing  that 
collectors  of  customs  might  seize  vessels  violating  Sec.  3  and  prose- 
cute them  in  like  manner  as  vessels  are  prosecuted  for  violation  of  the 
revenue  laws.  It  will  be  remembered  that  Sees.  10  and  11  of  the  Act 
of  1818  first  appeared  in  the  Act  of  1817,  as  an  amendment  to  the 
Act  of  1794,  and  were  later  incorporated  into  the  Act  of  1818.^  A 
new  section  (10)  was  introduced  which,  because  of  the  importance  of 
the  subject  with  which  it  deals  in  the  history  of  the  neutral  relations 
of  the  United  States,  is  here  reproduced  in  full  as  amended  before 
the  third  reading: 

Sec.  10.  And  be  it  further  enacted,  That  nothing  in  this  act 
or  any  other  existing  law  shall  be  so  construed  as  to  prohibit 
citizens  of  the  United  States  from  selling  vessels,  ships,  or  steam- 
ers built  within  the  limits  thereof,  or  materials,  or  munitions  of 
war  the  growth  or  product  of  the  same,  to  inhabitants  of  other 
countries  or  to  Governments  not  at  war  with  the  United  States : 
Provided,  That  the  operation  of  this  section  of  this  act  shall  be 
suspended  by  the  President  with  regard  to  any  classes  or  pur- 
chases whenever  or  wherever  the  maintenance  of  friendly  rela- 
tions with  any  foreign  nation  may,  in  his  judgment,  require  it. 

Justification  The  comment  of  the  Committee  upon  the  omission  of  the  important 

offered.  Sees.  10  and  11  of  the  Act  of  1818  and  upon  the  insertion  of  the  new 

section  relating  to  the  sale  of  vessels  is  as  follows : 

These  stringent  provisions  are  not  now  necessary  for  the 
reason  given  for  the  passage  of  the  law  [of  1818],  to  prevent 
the  exportation  of  arms  by  force,  in  such  a  manner  as  to  compli- 
cate the  government  with  nations  at  war  with  each  other  but  at 
peace  with  the  United  States ;  neither  is  it  demanded  by  any  just 
interpretation  of  our  duty  to  other  nations  under  the  law  of  na- 
tions, treaty  stipulations,  or  reciprocal  municipal  regulations.   The 

^See  above,  p.  40. 
2See  above,  p.  41. 


HISTORY   OF   THE    NEUTRALITY    LAWS  51 

repeal  or  modification  of  these  provisions  will  be,  in  the  judg- 
ment of  your  committee,  for  the  interest  of  public  peace.  Their 
effect  now  is  to  perpetuate  the  subjugation  of  States  without 
naval  force  to  the  will  of  dominant  maritime  nations.  It  may 
reasonably  be  assumed  that  the  late  bombardment  of  the  South 
American  cities  on  the  Atlantic  coast  by  Spain,  which  has  been 
universally  condemned,  would  not  have  occurred  but  for  the 
stringent  execution  of  the  provisions  of  this  law  by  our  govern- 
ment. Had  the  South  American  governments  been  supplied  with 
materials  for  defence,  from  the  abundant  resources  of  the  United 
States,  this  invasion  of  the  American  waters  by  the  Spanish  navy 
would  not  have  been  contemplated.  Ships  are  articles  of  com- 
merce ;  they  are  in  no  liberal  or  just  sense  contraband  of  war,  nor 
are  the  materials  of  which  they  are  made.  The  recent  improve- 
ments in  naval  architecture  are  such  as  to  diminish  the  distinc- 
tions between  merchant  vessels  and  ships-of-war,  and  to  facilitate 
the  adaptation  of  one  to  the  purposes  of  the  other.  A  strong- 
built,  swift-sailing  merchant  vessel  or  steamer  could  be  made  with 
a  single  gun  an  effective  war  vessel.  To  prohibit  our  citizens 
from  building  such  vessels  or  selling  materials  for  their  con- 
struction at  a  time  when  all  nations  except  our  own  are  at  war, 
because  they  may  be  employed  for  hostile  purposes  by  foreign  sub- 
jects, or  to  demand  bonds  in  double  the  amount  of  vessel,  cargo, 
and  armament,  and  to  require  officers  of  the  customs  to  seize  and 
detain  them  whenever  cargo,  crew,  or  "other  circumstances" 
shall  render  probable  a  suspicion  that  they  are  to  be  so  used,  and 
where  American  citizens  are  part  owners  only,  is  substantially  to 
deprive  them  of  their  rights  to  engage  in  the  construction  of  ves- 
sels or  to  furnish  materials  therefor.  Considering  the  limitless 
capacity  of  the  country  in  this  respect,  it  is  a  privilege  that  ought 
not  to  be  surrendered  except  upon  grounds  of  absolute  necessity 
and  justice.^ 

By  the  enactment  of  Sec.  10,  the  possibility  of  another  decision  simi- 
lar to  that  of  Judge  Betts  in  the  case  of  the  Meteor  would  have  been 
forestalled. 

The  bill  passed  the  House  by  a  vote  of  123  to  0,  63  not  voting.  On  ^^^^"F^  ^^ 
being  sent  to  the  Senate  it  was  read  twice  and  then  referred  to  the 
Committee  on  Foreign  Relations,  whence  it  is  not  knownjQ  have  ever 
emerged.  Accordingly,  it  seems  hardly  profitable  to  discuss  the  ill- 
considered  statements  of  the  chairman  of  the  House  committee  that 
the  bill  was  a  return  to  the  principles  of  the  original  Neutrality  Act 
of  1794,  and  that  it  substantially  stood  on  a  par  with  the  British 
Foreign  Enlistment  Act  of  1819. 


'fe' 


^House  Report  No.  loo,  39th  Cong.,  1st  Sess. 


52 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Revolution  in  In   1868  began  the  long  revolution   in   Cuba  known   as   the   "Ten 

plaints  o?  Spain.  Years'  War."  Once  again,  adventurers  from  the  United  States  went 
over  to  join  the  insurgent  ranks,  and  efforts  were  made  to  recruit 
additional  forces  and  establish  a  base  of  supplies  in  the  United  States. 
On  September  18,  1869,  Mr.  M.  Lopez  Roberts,  Spanish  minister  at 
Washington,  wrote  to  Mr.  Fish  giving  details  of  the  unneutral  acts 
which  the  United  States  was  permitting  to  be  committed  within  its 
territory.  Certain  Cuban  malcontents,  he  said,  had  established  them- 
selves in  the  United  States,  especially  in  New  York,  and  were  en- 
deavoring by  every  means  in  their  power  to  gain  the  sympathies  of 
the  American  people ;  associations  were  being  publicly  organized  in 
many  ports,  enlistments  of  men  were  taking  place  during  whole  weeks, 
and  filibustering  expeditions  were  departing  in  broad  daylight,^  Mr. 
Fish  replied  on  October  13th  that  he  was  "forced  to  admit  with  re- 
gret" that  an  unlawful  expedition  had  succeeded  in  escaping  from  the 
United  States  and  landing  on  the  shores  of  Cuba,  but  that  its  de- 
parture had  been  accompanied  with  such  secrecy  as  to  have  escaped 
detection  on  the  part  of  the  government  officials.  As  for  the  other 
complaints  presented  by  Mr.  Roberts,  there  were  constitutional  limits 
which  prevented  the  government  from  attempting  to  suppress  free- 
dom of  speech  and  from  instituting  unreasonable  searches  and  seiz- 
ures.^ 
Grant's  message  In  his  annual  message  of  December  6,  1869,  President  Grant  admits 

and  proclamation,  ^j^^^.  ^<^j^g  people  and  government  of  the  United  States  entertain  the 
same  warm  feelings  and  sympathies  for  the  people  of  Cuba  in  their 
pending  struggle  that  they  manifested  throughout  the  previous  strug- 
gles between  Spain  and  her  former  colonies  in  behalf  of  the  lat- 
ter."^ On  October  12,  1870,  the  President  issued  a  proclamation  di- 
rected both  against  the  Fenians  and  against  the  agents  of  the  Cuban 
insurgents.*  The  war  in  Cuba,  owing  to  the  non-recognition  by  Spain 
of  the  insurgents  as  belligerents,  was  conducted  on  both  sides  with 
such  ferocity  and  with  such  disregard  for  the  laws  of  war  that  it  was 
difficult  for  the  United  States  not  to  intervene,  and  certainly  very 
difficult  to  thwart  every  attempt  on  the  part  of  Cuban  refugees  in 
the  United  States  and  of  its  own  citizens  to  give  assistance  to  the 
rebels. 

On  August  22,  1870,  President  Grant  issued  the  usual  formal  procla- 

^House  Ex.  Doc.  No.  i6o,  41st  Cong.,  2d  Sess.,  133. 

^Ibid.  loc.  cit. 

^Richardson's  Messages,  VII,  27. 

*Ibid.  91. 


HISTORY    OF    THE    NEUTRALITY    LAWS  53 

mation  of  neutrality  with  respect  to  the  Franco-Prussian  war.^  This  Proclamation  re- 
was  followed,  on  October  8th,  by  a  second  proclamation  of  a  new  char-  p/us^an  war"*^ 
acter.^  The  disputes  with  Great  Britain  arising  out  of  the  use  of 
British  ports  as  a  base  of  naval  supply  for  Confederate  vessels  had 
taught  the  United  States  several  lessons,  and  it  was  to  be  expected 
that  the  United  States  would  enforce  the  principles,  the  alleged  viola- 
tion of  which  constituted  its  claim  against  England  for  indemnity. 
The  proclamation  of  October  8th,  after  reciting  that  subsequent  infor- 
mation gave  reason  to  apprehend  an  abuse  of  the  hospitality  of  the 
ports  of  the  United  States  by  belligerent  cruisers,  declares  that  any  use 
of  the  territorial  waters  of  the  United  States  by  vessels  of  either 
belligerent  for  the  purpose  of  preparing  for  hostile  operations  or  as 
posts  of  observation  must  be  regarded  as  in  violation  of  the  neutrality 
of  the  United  States.  The  proclamation  then  proceeds  to  announce  the 
proposed  enforcement  of  the  rule  that  the  vessels  of  one  belligerent 
must  not  leave  a  neutral  port  until  twenty-four  hours  after  the 
prior  departure  of  a  vessel  of  the  other  belligerent.  Asylum  in  the 
ports  of  the  United  States  is  limited  to  a  stay  of  twenty-four  hours. 
The  supplies  which  may  be  taken  in  by  a  belligerent  vessel  are  limited 
to  "provisions  and  such  other  things  as  may  be  requisite  for  the  sub- 
sistence of  her  crew"  and  to  "so  much  coal  as  may  be  sufficient  to 
carry  such  vessel,  if  without  sail  power,  to  the  nearest  European  port 
of  her  own  country" ;  moreover,  no  coal  shall  be  again  supplied  to  the 
same  vessel  until  after  the  expiration  of  three  months  from  the  time 
when  coal  was  last  supplied. 

It  will  be  observed  that  the  proclamation  recognized  the  new  order 
of  things  introduced  by  the  use  of  steam  vessels  in  maritime  warfare. 
The  twenty-four  hours  rule,  though  not  generally  or  continuously  ac- 
cepted, had  been  known  to  international  usage  since  1759.  The  limi- 
tation of  asylum  to  a  stay  of  twenty-four  hours  was  first  introduced 
by  Great  Britain  in  the  neutrality  regulations  of  1862,  in  order  to 
preclude  a  repetition  of  the  method  by  which  the  United  States  cor- 
vette Tuscarora  had  for  several  weeks  prevented  the  departure  from 
Southampton  of  the  Confederate  cruiser  Nashville.  The  requirement 
of  a  three  months'  interval  between  successive  supplies  of  coal  repeats 
a  rule  fixed  by  Great  Britain  in  the  same  regulations.  The  above 
rules  are  embodied  in  the  Convention  relating  to  the  Rights  and  Duties 
of  Neutral  Powers  in  Maritime  War,  adopted  by  the  Second  Hague 

^Richardson's  Messages,  VII,  86. 
^Ibid.  89. 


54  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Conference  of  1907,  and  will  be  considered  more  in  detail  in  that  con- 
nection. 
Expeditions  in  aid       In  1884  President  Arthur,  in  his  annual  message  to  Congress  on 
insurgents.  December  1st/  referred  to  the  prosecutions  which  had  been  instituted 

by  the  government  against  persons  who  had  attempted  to  aid  revolu- 
tionists in  both  Haiti  and  Cuba.  With  respect  to  Haiti  these  prosecu- 
tions were,  said  the  president,  "in  all  cases  successful."  With  respect 
to  Cuba,  the  president  was  at  least  able  to  say  that  "in  the  only  in- 
stance where  these  precautionary  measures  were  successfully  eluded, 
the  offenders,  when  found  in  our  territory,  were  successfully  tried 
and  convicted."  Earlier  in  the  year  the  Spanish  minister  at  Washing- 
ton had  written  to  the  Secretary  of  State,  Mr.  Frelinghuysen,  stating 
that  "a.  certain  turbulent  minority  of  Spaniards,  born  in  Cuba,  take 
refuge  in  this  country  for  the  purpose  of  conspiring,  without  molesta- 
tion."^ Ten  days  later,  on  March  27th,  the  Spanish  minister  re- 
ferred to  "advices  received  by  him  to  the  effect  that  Carlos  Agiiero  is 
organizing  an  expedition  at  Key  West ;  he  has  a  force  of  one  hundred 
armed  men,  together  with  bomb-shells  and  other  destructive  materials 
which  are  to  be  used  against  us."^  On  April  14th  he  again  wrote  that 
he  had  just  received  a  communication  from  the  Spanish  consul  at  New 
Orleans  stating  that  "a  new  expedition  is  being  prepared  there  which 
will  set  out  from  the  Gulf  in  the  course  of  a  week,  or  sooner,  with  the 
purpose  of  effecting  a  landing  in  Cuba."*  Further  complaints  fol- 
lowed. In  each  of  these  cases  energetic  measures  were  taken  by  the 
Secretary  of  State  to  prevent  any  violation  of  the  neutrality  of  the 
United  States.^  Agiiero  did,  it  is  true,  escape  from  the  United  States, 
but,  as  far  as  could  be  learned,  not  under  circumstances  amounting  to 
an  "armed  expedition."  On  October  29th  the  Secretary  of  State  was 
able  to  quote  to  the  Spanish  minister  a  letter  from  the  United  States 
district  attorney  at  Key  West  to  the  effect  that  "there  have  been  no 
attempts  to  violate  the  neutrality  laws  here  since  the  trial  and  convic- 
tion here  of  those  arrested  for  assisting  the  'Aguero  expedition,'  and  I 
am  satisfied  there  will  not  be  any  further  attempts  made  here."^  In 
consequence  of  the  difficulties  attending  the  prosecution  of  offenders. 
President  Arthur,  in  the  message  above  referred  to,  called  the  atten- 
tion of  Congress  to  the  need  for  further  legislation : 

^Richardson's  Messages,  VIII,  235. 

^For.  Rel,  1884,  502. 

^Ibid.  505. 

^Ibid.  507. 

'-Ibid.  493-495. 

mid.  521. 


HISTORY    OF   THE    NEUTRALITY    LAWS  55 

I  recommend  that  the  scope  of  the  neutrality  laws  of  the  United  Arthur's  request 
States  be  so  enlarged  as  to  cover  all  patent  acts  of  hostility  com-  ^°^  legislation, 
mitted  in  our  territory  and  aimed  against  the  peace  of  a  friendly 
nation.  Existing  statutes  prohibit  the  fitting  out  of  armed  expe- 
ditions and  restrict  the  shipment  of  explosives,  though  the  enact- 
ments in  the  latter  respect  were  not  framed  with  regard  to  inter- 
national obligations,  but  simply  for  the  protection  of  passenger 
travel.  All  these  statutes  were  intended  to  meet  special  emer- 
gencies that  had  already  arisen.  Other  emergencies  have  arisen 
since,  and  modern  ingenuity  supplies  means  for  the  organization 
of  hostilities  without  open  resort  to  armed  vessels  or  to  filibus- 
tering parties. 

I  see  no  reason  why  overt  preparations  in  this  country  for  the 
commission  of  criminal  acts,  such  as  are  here  under  consideration, 
should  not  be  alike  punishable,  whether  such  acts  are  intended  to 
be  committed  in  our  own  country  or  in  a; foreign  country  with 
which  we  are  at  peace. 

The  prompt  and  thorough  treatment  of  this  question  'is  one 
which  intimately  concerns  the  national  honor.^ 

An  insurrection  broke  out  in  Cuba  again  in  1895.  From  the  start  Insurrection  in 
the  United  States  government  realized  that,  as  in  previous  wars,  at-  {ions  of  [895-1896 
tempts  would  be  made  by  the  insurgents  to  obtain  active  assistance 
from  the  neighboring  shores  of  this  country.^  In  his  message 
of  December  2,  1895,  President  Cleveland  refers  to  the  contest 
as  "arousing  sentimental  sympathy  and  inciting  adventurous  sup- 
port among  our  people,"  and  as  therefore  entailing  "earnest  ef- 
fort on  the  part  of  this  Government  to  enforce  obedience  to 
our  neutrality  laws  and  to  prevent  the  territory  of  the  United 
States  from  being  abused  as  a  vantage  ground  from  which  to 
aid  those  in  arms  against  Spanish  sovereignty."^  Although  the  insur- 
gents had  no  standing  in  international  law,  the  President  had  thought 
it  proper  to  issue,  on  June  12,  1895,  the  formal  proclamation  of  neu- 
trality issued  when  two  recognized  nations  are  at  war.'*  This  was  fol- 
lowed, on  July  27,  1896,  by  a  second  proclamation  in  which  the  Presi- 
dent calls  attention  to  the  fact  that  the  neutrality  laws  of  the  United 
States  had,  since  the  date  of  his  former  proclamation,  been  the  sub- 
ject of  authoritative  exposition  by  the  judicial  tribunal  of  last  resort 

^Richardson's  Messages,  VIII,  235. 

2A  tabular  list  of  the  military  expeditions  set  on  foot  in  the  United  States 
to  commit  hostilities  against  Cuba  from  1895-1897,  together  with  the  judicial 
proceedings  instituted  by  the  United  States  courts  against  the  offenders,  may 
be  found  in  Carlisle,  Report  to  the  Spanish  Minister,  Don  E.  Dupuy  de  Lome, 
June,  1897. 

sRichardson's  Messages,  IX,  262. 

*Ibid.  591. 


56 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Neutrality  in  Rus- 
so-Japanese   war. 


Proclamation  of 
1905. 


Insurrection  in 
Mexico.     Alleged 
violations  of 
neutrality. 


on  the  point  as  to  what  constituted  a  "military  expedition  or  enter- 
prise" ;^  moreover,  there  was  reason  to  believe  that  the  citizens  of  the 
United  States  failed  to  apprehend  the  meaning  and  operation  of  the 
neutrality  laws.^ 

On  February  11,  1904,  a  week  after  the  outbreak  of  the  Russo- 
Japanese  war,  a  proclamation  of  neutrality  was  issued  by  President 
Roosevelt.  After  reciting  the  acts  forbidden  by  the  neutrality  laws 
of  the  United  States,  as  in  the  proclamation  of  President  Grant  during 
the  Franco-Prussian  war,  the  proclamation  sets  forth  the  rules  rela- 
ting to  belligerent  asylum,  etc.,  embodied  in  President  Grant's  second 
proclamation  of  October  8,  1870. 

In  1905,  when  the  Dominican  Republic  was  threatened  with  a  revo- 
lutionary outbreak,  the  United  States  government  sought  to  aid  the 
authorities  of  the  republic  in  preventing  the  import  of  arms  and 
munitions  into  the  country.  After  consulting  the  Dominican  Republic, 
President  Roosevelt  issued,  on  October  14,  1905,  a  proclamation  for- 
bidding "the  export  of  arms,  ammunition  and  munitions  of  war  of 
every  kind,  from  any  port  in  the  United  States  or  in  Porto  Rico  to 
any  port  in  the  Dominican  Republic."^  The  proclamation  was  based 
upon  the  authority  of  a  joint  resolution  of  Congress  passed  at  the 
beginning  of  the  Spanish  war,  authorizing  the  President,  at  his  dis- 
cretion, to  prohibit  the  export  of  coal  or  other  material  from  any 
seaport  of  the  United  States.*  The  joint  resolution  <?f  1898  was  a 
war  measure  intended  to  conserve  to  the  United  States  the  supplies 
of  war  material  manufactured  in  the  country,  and  it  had  no  connec- 
tion whatever  with  the  obligations  of  neutrality.  Accordingly,  it  did 
not  justify,  except  in  the  letter,  the  proclamation  of  1905,  applying  it 
to  totally  different  conditions. 

In  November,  1910,  an  insurrection  broke  out  in  Mexico,  which  is 
still  in  progress  [1913],  though  under  changed  conditions.  Fran- 
cisco Madero,  who  had  been  imprisoned  during  the  elections  of  the 
previous  July,  in  which  he  was  opposition  candidate  to  President  Diaz, 
was  released  from  prison  on  October  9th  and  fled  to  Texas  in  dis- 
guise. He  immediately  collected  a  body  of  followers  who  were  op- 
posed to  the  administration  of  Diaz,  and  started  a  revolution  to  over- 
throw    the     government.     On    November    16,    1910,    the    Mexican 

^The  decision  referred  to  is  that  of  IViborg  v.  United  States,  163  U.  S.,  632; 
see  below,  p.  87. 
2Richardson's  Messages,  IX,  694. 
^For  the  text  of  the  proclamation,  see  App.,  p.  182. 
■*For  the  text  of  the  joint  resolution,  see  App.,  p.  182. 


HISTORY    OF   THE    NEUTRALITY    LAWS  57 

government  complained  that  Madero  and  his  friends  were  actively 
preparing  from  San  Antonio,  Texas,  as  a  center,  a  movement  directed 
against  the  Mexican  government,  and  that  arms  supposed  to  be 
intended  for  this  purpose  had  been  located  in  American  territory.^  On 
November  19th  it  was  complained  that  bands  of  revolutionists  were 
being  recruited  in  various  places  along  the  frontier,  especially  at  Naco, 
El  Paso,  Presidio,  Boquilla  and  Eagle  Pass.  On  November  23rd  it 
was  complained  that  an  American  agent  of  Madero  had  left  St.  Louis, 
Mo.,  with  recruits  for  the  rebel  army  in  Mexico.  On  December  30th 
it  was  reported  that  an  individual  domiciled  in  Dallas,  Texas,  was 
directing  shipments  of  arms  between  El  Paso  and  Eagle  Pass,  Texas. 
On  December  31st  it  was  reported  that  an  armed  body  of  revolu- 
tionists was  said  to  be  located  between  Sanderson  and  Del  Rio,  Texas. 
Investigation  was  made  of  these  and  other  specific  complaints,  but  in 
most  cases  it  was  found  that  the  complaint  was  without  foundation. 
During  the  course  of  the  insurrection  the  Mexican  frontier  bordering 
on  the  United  States  was  frequently  the  scene  of  battle,  and  the  United 
States  government  found  it  necessary  to  send  troops  to  the  Texan 
border  in  order  to  prevent  hostilities  from  crossing  the  boundary  line 
and  to  enforce  the  observance  of  the  neutrality  laws  of  the  United 
States.  While  the  rebel  forces  were  in  possession  of  Juarez,  the 
border  town  immediately  south  of  El  Paso,  Texas,  a  regular  trade  in 
arms  and  ammunition  was  carried  on  across  the  frontier.  Men, 
women  and  children  came  over  from  Mexico  to  purchase  arms  from 
the  United  States  and  returned  with  them  freely  back  to  Mexico. 
Mexican  merchants  in  sympathy  with  the  rebels  bought  war  supplies 
in  the  United  States  and  had  them  shipped  to  Mexico  like  other  mer- 
chandise. El  Paso  thus  became  practically  a  base  of  supplies  for  the 
rebel  forces. 

After  conducting  a  guerilla  warfare  with  varying  success  for  six 
months,  Madero  succeeded  in  forcing  Diaz  to  resign  on  May  25,  1911, 
and  was  himself  elected  president  the  following  October.  Less  than 
three  months  after  the  inauguration  of  Madero  a  second  revolution 
broke  out,  and  under  the  leadership  of  General  Orozco,  a  former 
lieutenant  of  Madero,  the  rebels  successfully  resisted  the  federal  gov- 
ernment. Juarez  was  captured  by  the  rebels  and  again  El  Paso  be- 
came the  market  for  arms.  On  March  2,  1912,  President  Taft  issued  Proclamation  of 
a  proclamation  directed  in  the  usual  terms  against  acts  within  the  ^^^^^^  2,  1912. 
jurisdiction  of  the  United  States  in  favor  of  the  insurgents. 

^Memorandum  of  the  Department  of  State,  March  14,  1912. 


58  NEUTRALITY   LAWS  OF  THE  UNITED   STATES 

Joint  resolution  But  it  was  evident  that  legislation  was  needed  to  check  the  unre- 

of  March  14,  1912.  stricted  shipment  of  arms  from  the  border  towns  of  the  United  States 
into  Mexico.  Accordingly,  on  March  14,  1912,  upon  the  motion  of 
Senator  Root,  Congress  passed  the  following  joint  resolution: 

Resolved  by  the  Senate  and  Hoiise  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  joint 
resolution  to  prohibit  the  export  of  coal  or  other  material  used 
in  war  from  any  seaport  of  the  United  States,  approved  April 
twenty-second,  eighteen  hundred  and  ninety-eight,  be,  and  hereby 
is,  amended  to  read  as  follows : 

That  whenever  the  President  shall  find  that  in  any  American 
country  conditions  of  domestic  violence  exist  which  are  promoted 
by  the  use  of  arms  or  munitions  of  war  procured  from  the  United 
States,  and  shall  make  proclamation  thereof,  it  shall  be  unlawful 
to  export  except  under  such  limitations  and  exceptions  as  the 
President  shall  prescribe  any  arms  or  munitions  of  war  from  any 
place  in  the  United  States  to  such  country  until  otherwise  ordered 
by  the  President  or  by  Congress. 

Sec.  2.  That  any  shipment  of  material  hereby  declared  unlaw- 
ful after  such  a  proclamation  shall  be  punishable  by  fine  not 
exceeding  ten  thousand  dollars,  or  imprisonment  not  exceeding 
two  years,  or  both. 

The  joint  resolution  thus  empowers  the  President  to  recognize  the 
existence  of  conditions  under  which  the  act  makes  it  unlawful  to 
export  any  arms  or  munitions  of  war  to  the  country  designated.     It  is 
a  distinct  advance  over  the  joint  resolution  of  1898,  not  only  in  that 
it  was  framed  to  meet  the  neutral  obligations  of  the  United  States, 
but  because  it  imposes  a  specific  penalty  upon  offenders ;  and  it  thus 
takes  its  place  as  a  permanent  amendment  to  the  Neutrality  Act  of 
Proclamation   giv-  1818.     In   pursuance   of   the   power   conferred   upon   him.    President 
ing  e  ect  to  i  .        'Y2iii  issued,  on  the  same  day,  a  proclamation  announcing  the  exist- 
ence in  Mexico  of  the  conditions  described  in  the  joint  resolution  of 
Congress,  and  the  consequent    applicability    of    the    terms    of    the 
"  resolution. 

In  the  preceding  sketch  of  the  historical  development  of  the  neu- 
trality laws  of  the  United  States,  and  of  the  successive  proclamations 
calling  the  attention  of  the  public  to  the  determination  of  the  govern- 
ment to  enforce  them  under  the  special  circumstances,  no  attempt  has 
been  made  to  state  the  technical  interpretation  of  the  several  acts  by 
judicial  decision,  or  to  enter  upon  a  discussion  of  the  extent  to  which 
the  neutrality  laws  of  the  United  States  are  adequate  to  meet  the 
present  international  obligations  of  the  nation.  Each  of  these  sub- 
jects will  be  considered  in  separate  chapters. 


construction. 


CHAPTER  III. 

THE  AUTHORITATIVE   INTERPRETATION   OF  THE  NEUTRALITY 
LAWS    OF   THE   UNITED    STATES. 

In  this  chapter  the  attempt  will  be  made  to  set  forth  the  precise 
scope  of  the  neutrality  laws  of  the  United  States  by  an  examination 
of  the  technical  interpretation  given  them  in  the  decisions  of  the  federal 
courts,  the  opinions  of  the  Attorneys  General,  the  correspondence  of 
the  State  Department  with  foreign  governments,  and  other  official 
documents.  Before  taking  up  the  individual  sections  of  the  Revised 
Statutes,  attention  may  be  called  to  certain  points  of  general  criticism. 

The  neutrality  laws,  in  so  far  as  their  provisions  are  penal  in  Rule  of  strict 
character,  are  subject  to  the  rule  governing  all  criminal  statutes,  that 
they  must  be  interpreted  within  the  strict  limits  of  the  wording  of  the 
statute,  and  are  to  be  construed  in  favor  of  the  accused,  who  is 
given  the  benefit  of  any  doubts  as  to  their  meaning.  In  the  case  of 
the  Three  Friends,^  the  District  Court,  in  commenting  upon  an  exten- 
sion of  the  statute  to  a  case  to  which  it  was  clearly  desirable  to  apply 
it,  said:  "This  statute  is  a  criminal  and  penal  one,  and  is  not  to  be 
enlarged  beyond  what  the  language  clearly  expresses  as  being  intended. 
It  is  not  the  privilege  of  courts  to  construe  such  statutes  according 
to  the  emergency  of  the  occasion,  or  according  to  temporary  ques- 
tions of  policy,  but  according  to  principles  considered  to  have  been 
established  by  a  line  of  judicial  decisions." 

The  principle  is  sound,  although  the  application  of  it  was  over- 
ruled on  appeal.  The  rule  of  strict  construction  does  not,  however, 
forbid  a  construction  of  the  statute  in  connection  with  and  in  the 
light  of  other  provisions  of  other  statutes  relating  to  international  sub- 
jects, when  such  provisions  throw  light  upon  the  probable  intent  of 
the  language  used.-  Moreover,  since  the  authority  of  Congress  to 
enact  criminal  statutes  for  the  preservation  of  the  neutral  relations 
of  the  United  States  with  other  nations  is  based  upon  the  clause  of 
the  Constitution  empowering  Congress  to  define  and  punish  oflFenses 
against  the  law  of  nations,  it  is  permissible  to  resort  to  the  rules  of 

178  Fed.  Rep.,  175;  see  also  The  Carondolet,  Z7  Fed.  Rep.,  799;  The  Itata,  56 
Fed.  Rep.,  505. 
2See  The  Itata,  56  Fed.  Rep.,  505. 


60 


NEUTRALITY   LAWS  OF  THE   UNITED   STATES 


Sec.   1   of   Act  of 
April  20,   1818. 


international  law  to  obtain  light  on  the  construction  of  the  municipal 
statutes  enacted  to  give  effect  to  that  law. 

In  the  following  examination  of  the  scope  of  the  neutrality  laws 
the  chief  stress  will  be  laid  upon  the  positive  character  of  the  laws, 
as  prohibiting  certain  definite  acts,  and  only  incidental  reference  will 
be  made  to  the  acts  not  covered  by  them,  since  these  latter  will  form 
the  subject  of  a  separate  chapter.  The  laws  will  be  examined  section 
by  section,  in  the  order  of  their  position  in  the  Revised  Statutes. 

Accepting  a  Foreign  Commission. 
Sec.  5281.  Every  citizen  of  the  United  States  who,  within  the 
territory  or  jurisdiction  thereof,  accepts  and  exercises  a  com- 
mission to  serve  a  foreign  prince,  state,  colony,  district,  or  people, 
in  war  by  land  or  by  sea,  against  any  prince,  state,  colony,  dis- 
trict, or  people,  with  whom  the  United  States  are  at  peace,  shall 
be  deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined  not 
more  than  two  thousand  dollars,  and  imprisoned  not  more  than 
three  years. 


Applies  to  citizens 
only. 


Proof  of  overt 
act  essential. 


By  whom  com- 
mission may  be 
conferred. 


The  law  is  limited  in  its  applicaton  to  citizens  of  the  United  States 
and  does  not  apply  to  all  persons  indiscriminately.  A  foreigner  not 
owing  allegiance  to  the  United  States  could  accept  a  commission  in  the 
service  of  his  own  country  or  any  other  country  without  being  liable 
to  prosecution. 

In  order  to  constitute  the  offense  as  defined,  the  commission  must  be 
accepted  and  exercised.  The  two  acts  go  together  and  the  mere 
acceptance  alone  of  a  commission  is  not  sufficient  to  subject  a  citizen 
to  prosecution.  In  a  charge  to  the  grand  jury  delivered  in  1838  by 
Judge  McLean  at  the  time  of  the  insurrections  in  Canada,  it  is  stated 
that  "some  overt  act,  under  the  commission,  must  be  done;  such  as 
raising  men  for  the  enterprise,  collecting  provisions,  munitions  of  war, 
or  any  other  act  which  shows  an  exercise  of  the  authority  which  the 
commission  is  supposed  to  confer."^  It  would  seem,  however,  that  the 
mere  acceptance  of  a  commission  might  properly  have  been  held  as 
equivalent  to  an  enlisting  of  oneself  in  the  service  of  a  belligerent,  and 
so  forbidden  under  Sec.  5282. 

The  clause  "to  serve  a  foreign  prince,  state,  colony,  district,  or 
people,"  as  was  pointed  out  in  the  preceding  chapter,  was  added  by 
way  of  amendment  to  the  original  Act  of  1794  which  read,  "to  serve  a 
foreign  prince  or  state."  It  was  meant  to  be  all-comprehensive,  so 
as  to  include  any  political  body  in  whose  service  a  commission  might 


130  Fed.  Cases,  No.  18,265. 


INTERPRETATION   OF   THE   NEUTRALITY  LAWS  61 

be  accepted  against  a  friendly  state.  The  comprehensive  interpreta- 
tion placed  upon  this  clause  has  been  generally  given  with  reference  to 
indictments  under  Sec.  5283,  and  will  be  discussed  in  that  connection. 
It  may  be  observed,  however,  that  in  the  charge  to  the  grand  jury 
referred  to  above,  Judge  McLean  held  that  "the  commission  may  be 
conferred  by  any  district  of  country,  or  association  of  people,  whose 
right  to  confer  it  shall  be  recognized  by  the  person  appointed.  And  it 
is  immaterial  whether  the  commission  has  been  conferred  by  the  pop- 
ular voice,  or  by  the  representatives  of  such  district,  or  association  of 
people."  Accordingly,  the  acceptance  and  exercise  of  a  commission 
to  serve  a  body  of  insurgents  who  are  sufficiently  organized  to  issue 
such  a  commission  would  come  within  this  interpretation  of  the 
statute.^ 

Passing  now  to  a  consideration  of  the  section  as  a  whole,  it  may 
appear  that  inasmuch  as  the  words  "accepts  and  exercises  a  commis- 
sion" require  some  overt  act  done  in  pursuance  of  the  commission, 
the  offender  could  equally  well  be  prosecuted  under  subsequent  sec- 
tions which  define  the  acts  held  to  be  in  violation  of  the  neutrality  of 
the  United  States  by  whomsoever  committed.  There  are,  however, 
certain  acts  which  might  be  performed  in  the  service  of  a  belligerent 
by  a  person  holding  a  commission  under  such  belligerent,  but  which 
are  not  covered  by  other  sections  of  the  statute.  In  the  exercise  of  a 
commission  a  person  would  be  subject  to  prosecution  for  collecting 
money,  arms,  or  provisions  in  the  interest  of  the  belligerent  he  is 
serving;  whereas  these  same  acts,  if  performed  independently  of  a 
commission,  would  not  be  unlawful.  Whether  owing  to  the  difficulty 
of  proving  the  acceptance  of  a  commission,  or  from  the  fact  that 
the  acts  committed  in  the  exercise  of  a  commission  have  been  con- 
nected with  military  expeditions  and  were,  therefore,  indictable  under 
Sec.  5286,  there  has  been  apparently  but  one  prosecution  by  the 
United  States  under  the  section  here  considered.- 

Enlisting  in  Foreign  Service. 
Sec.  5282,  Every  person  who,  within  the  territory  or  jurisdic-    Sec.  2  of  Act  of 
tion  of  the  United  States,  enlists  or  enters  himself,  or  hires  or   April  20,  1818. 
retains  another  person  to  enlist  or  enter  himself,  or  to  go  beyond 

^This  holding  was  later  denied  by  the  court  in  the  case  of  the  Carondolet, 
Z7  Fed.  Rep.,  799,  but  still  later  reaffirmed  in  the  case  of  the  Three  Friends,  166 
U.  S.  1 ;  see  below,  pp.  75-76. 

2In  1797,  Isaac  Williams  was  tried  in  the  District  Court  of  Connecticut  for 
accepting  a  commission  under  the  French  republic,  and,  under  the  authority 
thereof,  committing  acts  of  hostility  against  Great  Britain.  The  defendant's 
plea  that  he  had  expatriated  himself  was  overruled  and  he  was  found  guilty, 
fined  and  imprisoned.    2  Cranch,  82,  note. 


62 


XEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Offenses  created. 


Leaving    country 
with  intent  to  en- 
list no  offense. 


the  limits  or  jurisdiction  of  the  United  States  with  intent  to  be 
enHsted  or  entered  in  the  service  of  any  foreign  prince,  state, 
colony,  district,  or  people,  as  a  soldier,  or  as  a  marine  or  seaman, 
on  board  of  any  vessel  of  war,  letter  of  marque,  or  privateer, 
shall  be  deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined 
not  more  than  one  thousand  dollars,  and  imprisoned  not  more  than 
three  years. 

The  law  applies  to  all  persons  within  the  territory  or  jurisdiction 
of  the  United  States  and  makes  no  discrimination  between  citizens  and 
aliens.  Three  distinct  offenses  are  created,  the  first  consisting  in  the 
act  by  which  a  person  enlists  or  enters  himself  in  the  service  of  a 
foreign  state,  the  second  and  third,  which  are  coupled  together,  con- 
sisting in  the  acts  of  hiring  or  retaining  others  to  enlist  in  the  said 
service,  or  to  go  beyond  the  limits  of  the  United  States  with  intent  to 
be  so  enlisted.  The  technical  interpretation  to  be  placed  upon  the 
terms  of  this  section  is  set  forth  very  clearly  in  two  opinions  rendered 
in  the  year  1855.  At  that  time.  Great  Britain  was  employing  agents 
to  carry  on  a  recruiting  service  in  the  United  States  with  the  object 
of  increasing  the  ranks  of  her  army  in  the  war  against  Russia.'^  In 
order  to  avoid  prosecution  under  the  above  section  of  the  neutrality 
laws,  the  attempt  was  made  in  some  cases  to  carry  persons  to  Halifax 
under  false  pretenses,  and  in  other  cases  to  persuade  persons  to  leave 
the  United  States  without  receiving  pay  with  the  understanding  that 
they  would  be  paid  upon  the  performance  of  the  service  desired.  In 
the  case  of  United  States  v.  Herts, ^  the  judge,  in  charging  the 
jury,  said:  "Every  resident  of  the  United  States  has  a  right  to  go  to 
Halifax  and  there  to  enlist  in  any  army  that  he  pleases ;  but  it  is  not 
lawful  for  a  person  to  engage  another  here  to  go  to  Halifax  for  that 
purpose,"  That  is  to  say,  with  respect  to  the  enlisting  of  oneself  in 
the  service  of  a  foreign  state,  the  act  of  enlistment,  to  constitute  an 
offense,  must  take  place  within  the  jurisdiction  of  the  United  States, 
while  with  respect  to  the  hiring  of  others  to  enlist,  the  ofifense  is  com- 
plete if  the  person  so  hired  leaves  the  United  States  "having  the  inten- 
tion to  enlist  when  he  arrives  out,  and  that  intention  known  to  the 
party  hiring  him,  and  that  intention  being  a  portion  of  the  conside- 
ration before  he  hires  him."  With  respect  to  the  method  of  hiring  or 
retaining,  the  judge  stated  that  "the  hiring  or  retaining  does  not 
necessarily  include  the  payment  of  money  on  the  part  of  him  who 

iSee  the  message  of  President  Pierce  to  Congress  on  December  31,  1855, 
Richardson's  Messages,  V,  2)2>Z;  also,  Papers  Relating  to  the  Treaty  of  Wash- 
ington, I,  534-626. 

226  Fed.  Cases,  No.  15,357. 


INTERPRETATION   OF   THE   NEUTRALITY   LAWS  63 

hires  or  retains  another.  He  may  hire  or  retain  a  person  with  an 
agreement  that  he  shall  pay  wages  when  the  service  shall  have  been 
performed."  Likewise,  "a  person  may  be  hired  or  retained  to  go 
beyond  the  limits  of  the  United  States,  with  a  certain  intent,  though 
he  is  only  to  receive  his  pay  after  he  has  gone  beyond  the  limits  of  the 
United  States  with  that  intent."  It  is  not  necessary  that  the  con- 
sideration of  the  hiring  shall  be  money. 

In  the  case  of  United  States  v.  Kazinski,'^  the  word  "retains"  What  constitutes 
was  declared  to  be  equivalent  to  "an  'engaging  of  one  party  by  the  fj/^"^^^"^  ^^' 
other,  with  the  consent  and  understanding  of  both."  The  element  of 
consent  is  thus  commented  upon:  "To  constitute  the  offence  of  en- 
listing here,  it  requires  the  consent  of  the  party  enlisting;  and  so  also 
the  hiring  or  retaining  a  person  to  go  abroad  with  intent  to  be  enlisted, 
requires  assent  and  intent  on  the  part  of  the  person  hired  or  retained." 
The  act  of  hiring  or  retaining  may  be  performed  by  agents,  but  it 
must  be  shown  that  the  agents  are  employed  for  this  specific  purpose 
and  are  acting  under  the  defendant.  The  captain  of  a  vessel  might 
be  aware  that  the  passengers  he  is  transporting  for  hire  were  leaving 
the  United  States  for  the  purpose  of  enlisting  abroad,  but  this  knowl- 
edge on  his  part  would  not  constitute  an  offense  under  the  statute. 
With  respect  to  the  evidence  required  in  proof  of  an  intent  to  enlist, 
it  may  be  gathered  from  the  conduct  and  declarations  of  the  person 
both  within  the  United  States  and  after  he  has  reached  the  foreign 
country.^  With  respect  to  the  testimony  admissible,  it  was  held  in 
both  of  the  above  cases  that  in  a  prosecution  for  retaining  others  to 
enlist,  the  persons  so  retained  could  testify  to  an  intent  to  enlist  in  a 
foreign  country  without  thereby  incriminating  themselves.  "It  is  the 
law  of  the  land  that,  where  two  or  more  persons  combine  together  to 
do  an  unlawful  act,  the  acts  of  each  may  be  given  in  evidence  for  the 
purpose  of  explaining  the  general  transaction."^ 

It  would  seem  that  the  act  of  enticing  others  by  false  pretences  to 
leave  the  United  States  with  the  intent  on  the  part  of  the  person  entic- 
ing them  that  they  shall  enlist  when  abroad,  but  without  intent  on  their 
part  so  to  enlist,  does  not  apparently  come  within  the  statute.  In  the 
case  of  United  States  v.  Kasinski  it  was  held  that  "the  hiring  and 
retaining  here,  and  the  intent  with  which  they  were  so  hired  or  re- 
tained, must  be  proved.  These  parties  may  have  been  deceived  and 
betrayed  in  their  supposed  voyage  to  Halifax  to  obtain  work.     If  the 

126  Fed.  Cases,  No.  15,508. 

^United  States  v.  Hertz,  26  Fed.  Cases,  No.  15,357. 

^Ihid. 


64 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Enlistments  for 
land    service    in- 
cluded. 


Methods  of 
retaining. 


defendants  [Kazinski  et  al.]  induced  them  to  go,  they  are  not  to  be 
excused ;  but  they  are  hable  in  some  other  form, — not  in  this,  if  at  all." 

In  the  same  case  it  was  argued  by  counsel  for  the  defendants  that 
the  purpose  of  this  section  was  to  prevent  only  enlistments  for  marine 
service;  and  that  the  word  "soldier"  was  limited  by  the  following 
words  "on  board  a  vessel  of  war,  letter  of  marque,  or  privateer."  But 
against  this  position  the  judge  held  that  "ordinarily  the  words  of 
limitation  following  would  qualify  all  the  words  preceding;  but  here 
'soldier'  must  be  taken  in  its  ordinary  sense,  as  one  enlisted  to  serve 
on  land  in  a  land  army."  It  would  seem  that  this  interpretation  might 
be  justified  by  the  actual  words  of  the  statute.  The  repetition  of  the 
word  "as"  before  "a  marine  or  seaman"  should  properly  be  taken  as 
limiting  the  clause  "on  board  of  any  vessel"  to  the  clause  "as  a  marine 
or  seaman."  It  appears,  moreover,  that  this  was  the  interpretation 
placed  upon  the  words  by  the  framers  of  the  original  Act  of  1794.^ 
The  second  section  of  the  Act  of  1794  was  spoken  of  as  punishing  a 
man  "for  enlisting  in  a  foreign  service,"  without  any  qualification. 
By  comparing  Sec.  2  of  the  Act  of  1818  with  the  corresponding  sec- 
tion of  the  Act  of  1794  it  will  be  found  that  the  latter,  unlike  the 
fomier,  has  no  comma  between  the  word  "seaman"  and  the  clause 
"on  board  of  any  vessel  of  war." 

In  August  of  the  same  year  in  which  the  above  decisions  were  ren- 
dered, an  elaborate  opinion  on  the  subject  of  foreign  enlistments  in 
the  United  States  was  given  by  Attorney  General  Gushing.  Attention 
may  be  called  to  a  paragraph  in  which  a  very  broad  interpretation  is 
put  upon  the  word  "retains."  "It  is,"  he  said,  "possible,  also,  that  he 
[the  British  minister]  may  have  supposed  that  a  solemn  contract  of 
hiring  in  the  United  States  is  necessary  to  constitute  the  oflFence.  That 
would  be  mere  delusion.  The  words  of  the  statute  are  'hire  or  re- 
tain.' It  is  true,  our  act  of  Gongress  does  not  expressly  say,  as  the 
British  act  of  Parliament  does,  'whether  any  enlistment  money,  pay, 
or  reward  shall  have  been  given  and  received  or  not,'  (Act  59  Geo. 
Ill,  cii.  69,  s.  2;)  nor  was  it  necessary  to  insert  these  words.  A  party 
may  be  retained  by  verbal  promise,  or  by  invitation,  for  a  declared  or 
known  purpose.  If  such  a  statute  could  be  evaded  or  set  at  naught  by 
elaborate  contrivances  to  engage  without  enlisting,  to  retain  without 
hiring,  to  invite  without  recruiting,  to  pay  recruiting  money  in  fact, 
but  under  another  name  of  board,  passage  money,  expenses,  or  the 
like,  it  would  be  idle  to  pass  acts  of  Gongress  for  the  punishment  of 
this  or  any  other  offence."^ 

M;;»a/j  of  Congress,  3rd  Cong.,  746. 
27  Op.  Atty.  Gen.,  277. 


INTERPRETATION  OF  THE   NEUTRALITY  LAWS  65 

Inasmuch  as  it  is  not  an  offense  against  the  neutrality  laws  of  the 
United  States  for  individual  citizens  to  leave  the  country  with  intent 
to  enlist  in  a  foreign  army  when  they  have  arrived  abroad,  it  is  per- 
missible for  them,  as  a  necessary  condition  of  their  departure,  to  go  in 
company  with  one  another,  provided  they  are  not  so  organized  as  to 
constitute  an  "armed  expedition"  within  the  terms  of  Sec.  5286.^  They 
may  even  charter  a  steamer  for  the  purpose  of  facilitating  their  pas- 
sage abroad,  if,  in  other  respects,  their  acts  are  innocent.^ 

The  statute  requires  that  the  enlistment  as  a  marine  must  be  to  Service  on  corn- 
serve  on  board  of  any  "vessel  of  war,  letter  of  marque  or  privateer,"  "^ercial  vessels, 
so  that  it  would  seem  to  be  lawful  for  American  sailors  to  engage 
their  services  upon  belligerent  commercial  vessels.  In  an  opinion 
rendered  in  1796,  Attorney  General  Lee  held  that  if  foreign  sov- 
ereigns "purchase  ships  in  the  United  States,  and  load  them  with 
provisions  for  the  use  of  their  fleets  or  armies,  those  ships  are  to  be 
considered  as  commercially  employed,"  and  "if  they  be  not  attached 
to  the  naval  or  military  expeditions,  as  part  thereof,  in  accompanying 
the  fleet,  or  closely  following  the  army  from  place  to  place,  for  the 
purpose  of  furnishing  [them  with]  supplies,  there  can  be  no  pretext 
for  restraining  the  American  sailors  from  hiring  on  board  of  them, 
for  the  purpose  of  gaining  a  support  in  their  customary  way  of 
occupation."^ 

It  may  be  noted  that  the  act  of  soliciting  others  to  go  without  the 
limits  of  the  United  States  to  enlist  in  the  service  of  a  foreign  state 
is  not  covered  by  the  statute.  It  is  difficult  to  see  how  a  mere  solici- 
tation, unaccompanied  by  a  contractual  agreement  of  any  kind,  whether 
executed  or  executory,  could  be  prohibited  consistently  with  the  free- 
dom of  speech  guaranteed  by  the  Constitution,  unless  the  act  itself 
of  going  without  the  limits  of  the  United  States  to  enlist  in  such  ser- 
vice were  to  be  made  criminal.* 

Arming  Vessels  against  People  at  Peace 
with  the  United  States. 
Sec.   5283.     Every  person  who,  within  the  limits  of  the  Uni-    Sec.  3  of  Act 
ted  States,  fits  out  and  anns,  or  attempts  to  fit  out  and  arm,  or   °^  '^P'"'^  20,  1818. 
procures  to  be  fitted  out  and  armed,  or  knowingly  is  concerned  in 
the  furnishing,  fitting  out,  or  arming,  of  any  vessel,  with  intent 
that  such  vessel  shall  be  employed  in  the  service  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  to  cruise  or 
commit  hostilities  against  the  subjects,   citizens,  or  property  of 

Wnited  States  v.  Nunez,  82  Fed.  Rep.,  599. 
^United  States  v.  O'Brien,  75  Fed.  Rep.,  900. 
SI  Op.  Atty.  Gen.,  63. 
-^See  Chap    IV,  pp   176-127. 


66  NEUTRALITY   LAWS   OF   THE   UNITED   STATES 

any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people, 
with  whom  the  United  States  are  at  peace,  or  who  issues  or  de- 
livers a  commission  within  the  territory  or  jurisdiction  of  the 
United  States,  for  any  vessel,  to  the  intent  that  she  may  be  so 
employed,  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  not  more  than  ten  thousand  dollars  and  imprisoned 
not  more  than  three  years.  And  every  such  vessel,  her  tackle, 
apparel,  and  furniture,  together  with  all  materials,  arms,  ammu- 
nition, and  stores,  which  may  have  been  procured  for  the  build- 
ing and  equipment  thereof,  shall  be  forfeited ;  one-half  to  the  use 
of  the  informer,  and  the  other  half  to  the  use  of  the  United 
States. 

Distinct   offenses         This  section,  like  the  preceding  one,  applies  to  all  persons  within 
created.  ^j^^  limits  of  the  United  States  without  discrimination  between  citi- 

zens and  aliens.  The  distinct  acts  which  it  enumerates  as  criminal  are 
well  defined  in  the  case  of  the  Meteor.'^  In  January,  1866,  this  vessel 
was  libeled  by  the  United  States  for  forfeiture  for  having  been  fitted 
out  in  the  service  of  the  government  of  Chile  to  commit  hostilities 
against  the  government  of  Spain.  The  owners  sought  to  prove  that 
the  mere  furnishing  and  fitting  out  of  a  vessel,  provided  it  were  not 
armed,  was  not  sufficient  to  constitute  an  offense  under  the  statute. 
The  court  described  the  several  offenses  constituted  by  the  statute  as 
follows :  "The  offences  set  out  in  the  section  must  have  been  com- 
mitted within  the  limits  of  the  United  States,  and  are  properly  classi- 
fied thus :  First.  The  fitting  out  and  arming  by  anv  person  of  any 
vessel,  with  the  intent  on  the  part  of  such  person,  that  she  shall  be 
employed  in  the  service  of  any  foreign  state,  or  of  any  people,  to 
cruise  or  commit  hostilities  against  the  subjects,  citizens  or  property 
of  any  foreign  prince  or  state,  or  of  any  people,  with  whom  the  United 
States  are  at  peace.  Second.  The  attempting  by  any  person  to  fit  out 
and  arm  any  vessel  with  the  like  intent.  Third.  The  procuring  by 
any  person  to  be  fitted  out  and  armed,  any  vessel  with  the  like  in- 
tent. Fourth.  The  being  knowingly  concerned  by  any  person  in  the 
furnishing  of  any  vessel  with  the  like  intent.  Fifth.  The  being  know- 
ingly concerned  by  any  person  in  the  fitting  out  of  any  vessel  with 
the  like  intent.  Sixth.  The  being  knowingly  concerned  by  any  per- 
son in  the  arming  of  any  vessel  with  the  like  intent.  Seventh.  The 
issuing  or  delivering  by  any  person  of  a  commission,  within  the  terri- 
tory or  jurisdiction  of  the  United  States,  for  any  ship  or  vessel,  to  the 

H7  Fed.  Cases,  No.  9,498.  On  appeal  to  the  Circuit  Court,  the  decision  of 
the  District  Court  was  reversed  as  to  the  sufficiency  of  the  evidence,  without, 
however,  impairing  the  definition  quoted  in  the  text. 


INTERPRETATION  OF  THE  NEUTRALITY  LAWS  67 

intent  that  she  may  be  employed  as  aforesaid.  If  any  one  of  these 
offences  has  been  committed,  the  vessel  in  respect  to  which  it  is  com- 
mitted is,  with  her  tackle,  etc.,  to  be  forfeited." 

With  respect  to  the  above  classification,  it  will  be  noted  that  under  Arming  vessel 
the  first  three  headings  the  two  acts  of  fitting  out  and  arming  are  "°^  necessary, 
joined  together  as  one  act,  so  that  it  would  seem  to  follow  that  the 
mere  fitting  out  alone,  whether  directly  done  or  attempted  to  be  done, 
or  procured  to  be  done,  could  not  be  considered  as  a  separate  offense 
if  the  vessel  were  not  armed.  This  conclusion  was  maintained  in  an 
earlier  case,  but  was  later  repudiated.  In  the  case  of  United  States  v. 
Skinner,^  decided  in  1818,  it  was  held  that  "no  offence  could  be  com- 
mitted against  the  third  section  of  the  act,  unless  the  vessel  was  armed, 
as  well  as  fitted  out,  with  intent  to  be  employed,  etc."  And  since  the 
case  of  the  principal  must  govern  that  of  the  accessory,  it  was  held 
"those,  therefore,  who  were  knowingly  concerned  in  the  furnishing, 
fitting  out,  or  arming  of  such  ship  or  vessel,  must  also  be  considered 
as  innocent,  until  an  actual  armament  took  place,  or  this  absurdity 
would  result,  that  one  man  might  have  a  vessel  built  and  fitted  out 
for  this  purpose  without  being  guilty  of  any  offence,  while  the  whole 
penalty  of  the  law  might  be  incurred  by  a  person  who  should  furnish 
her  with  a  single  suit  of  sails,  or  a  cable."  But  in  the  case  of  United 
States  V.  Quincy,  decided  in  1832,^  a  contrary  decision  was  rendered  on 
the  latter  point.  The  defendant  was  charged  with  being  "knowingly 
concerned  in  the  fitting  out  iof  a  certain  vessel  called  the  Bolivar,"  etc. 
In  answer  to  the  contention  of  the  defendant's  counsel  that  the  fitting 
out  must  be  of  a  vessel  armed  and  in  a  condition  to  commit  hostilities, 
otherwise  the  minor  actor  might  be  guilty  where  the  greater  was  not, 
the  court  held :  "If  this  construction  of  the  act  be  well  founded,  the  in- 
dictment ought  to  charge  that  the  defendant  was  concerned  in  fitting 
out  the  Bolivar,  being  a  vessel  fitted  out  and  armed,  etc.  But  this,  we 
apprehend,  is  not  required.  It  would  be  going  beyond  the  plain  mean- 
ing of  the  words  used  in  defining  the  offence."  In  the  case  of  the 
Meteor,^  referred  to  above,  the  court  denied  the  necessity  of  the 
double  act  of  fitting  out  and  arming  even  in  the  case  of  the  principal 
actors  directly  engaged  in  preparing  the  vessel.  The  court  reasoned 
as  follows :  "The  mischief  against  which  the  statute  intended  to  guard 
was  not  merely  preventing  the  departure  from  the  United  States  of 
an  armed  vessel,  but  the  departure  of  any  vessel  intended  to  be  em- 

127  Fed.  Cases,  No.  16,309. 

26  Pet.,  445. 

«17  Fed.  Cases,  No.  9,498. 


68  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

ployed  in  the  service  of  any  foreign  power,  to  cruise  or  commit  hostili- 
ties against  any  foreign  power  with  whom  the  United  States  are  at 
peace.  The  neutrality  of  the  government  of  the  United  States,  in  a 
war  between  two  foreign  powers,  would  be  violated  quite  as  much 
by  allowing  the  departure  from  its  ports  of  an  unarmed  vessel  with 
the  clear  intent  to  cruise  or  commit  hostilities  against  one  of  the  bel- 
ligerents, as  it  would  be  by  permitting  the  departure  from  its  ports 
of  an  armed  vessel  with  such  intent.  ...  It  would  be  a  very 
forced  interpretation  of  the  statute  to  say  that  it  was  not  an  offence 
against  it  to  knowingly  fit  out  a  vessel  with  everything  necessary 
to  make  her  an  effective  cruiser,  except  her  arms,  and  with  the  intent 
that  she  should  become  such  a  cruiser,  because  it  could  not  be  shown 
that  there  was  any  intent  that  she  should  be  armed  within  the  United 
States."  The  court  then  went  on  to  quote  an  obiter  dictum  from  the 
case  of  United  States  v.  Quincf-  to  the  effect  that  "it  is  true,  that 
with  respect  to  those  who  have  been  denominated  at  the  bar  the  chief 
actors,  the  law  would  seem  to  make  it  necessary  that  they  should 
be  charged  with  fitting  out  and  arming.  The  words  may  require 
that  both  shall  concur,  and  the  vessel  be  put  in  a  condition  to  com- 
mit hostilities  in  order  to  bring  her  within  the  law;  but  an  attempt 
to  fit  out  and  arm  is  made  an  offense.  This  is  certainly  doing 
something  short  of  a  complete  fitting  out  and  arming.  .  .  .  Any 
effort  or  endeavor  to  effect  it  will  satisfy  the  term  of  the  law."  This 
interpretation  of  the  statute,  though  doubtless  required  by  the  new 
conditions  which  had  arisen  at  the  time  that  the  decision  was  ren- 
dered, was  not  in  accord  with  the  intention  of  the  framers  of  the  act, 
and  was  scarcely  the  strict  interpretation  proper  to  a  penal  statute. 
The  court,  in  fact,  admitted  in  both  cases  that  "the  act  in  this  respect 
may  not  be  drawn  with  very  great  perspicuity."^ 

It  is  not  necessary,  of  course,  that  the  vessel  shall  have  been  orig- 
inally built  with  the  object  of  being  used  to  commit  hostilities.  In 
the  case  of  United  States  v.  Guinet^  the  court  held  that  "converting 
a  ship  from  her  original  destination,  with  intent  to  commit  hostilities ; 
or  in  other  words,  converting  a  merchant  ship  into  a  vessel  of  war, 
must  be  deemed  an  original  outfit ;  for  the  act  [of  1794]  would  other- 
wise, become  nugatory  and  inoperative." 
i^xtent  of  With  respect  to  the  extent  of  equipment  necessary  to  constitute  a 

equipment.  fitting  out  of  the  vessel,  it  will  be  seen  from  the  opinion  above  quoted 

16  Pet.,  445. 

n?  Fed.  Cases,  No.  9,498. 

32  Dall.,  321.     See  above,  p.  28. 


INTERPRETATION   OF   THE   NEUTRALITY  LAWS  69 

that  complete  equipment  is  not  necessary.  Later  decisions  interpret 
the  statute  even  more  liberally.  In  the  case  of  the  City  of  Mexico,^ 
decided  in  1886,  the  court  said :  "This  vessel  was  furnished  and  fitted 
out,  in  the  usual  acceptation  of  the  terms,  provided  with  the  necessary 
supplies,  and  put  in  a  condition  for  proceeding  to  sea,  within  the 
United  States.  Whether  she  was  well  furnished  or  thoroughly  fitted 
out  is  not  the  question,  if  she  was  so  supplied  as  to  proceed  on  her 
way."  In  the  case  of  the  Laiirada,^  decided  in  1898,  the  court  held 
that  "it  is  not  necessary  to  a  forfeiture  that  the  furnishing,  fitting  out 
or  arming  of  a  vessel  for  the  prohibited  purpose  should  be  completed 
within  the  limits  of  the  United  States.  It  is  sufficient  that,  by  prear- 
rangement  within  the  limits  of  the  United  States,  the  vessel  having 
been  procured  here,  the  furnishing,  fitting  out  or  arming  is  to  be  effected 
or  completed  after  she  has  gone  beyond  those  limits."  It  might 
even  happen  that  a  vessel  which  had  not  actually  been  armed  within 
the  limits  of  the  United  States  could  be  held  to  have  been  so  armed 
if  its  armament  were  furnished  it  on  the  high  seas  under  an  agree- 
ment to  that  effect  made  within  the  United  States.  In  the  case  of  the 
Carondolet,^  decided  in  1889,  it  was  held,  though  as  an  obiter  dic- 
tum, that  "when  the  arming  is  on  the  high  seas,  through  another  ves- 
sel, proof  that  both  were  despatched  from  our  ports  as  parts  of  a 
concerted  scheme  made  here,  is  justly  held  proof  of  'an  attempt,  within 
the  limits  of  our  jurisdiction,  to  fit  out  and  arm'  the  vessel  with  intent 
to  commit  hostilities,  and  hence  within  the  statute."  In  this  connec- 
tion it  may  be  noted  that  arms  and  ammunition  on  board  a  vessel  in- 
tended for  the  equipment  of  another  vessel  which  has  been  fitted  out 
in  violation  of  our  neutrality  laws  are  subject  to  seizure,  even  though 
the  delivery  has  never  been  completed  ;*  but  the  vessel  transporting 
such  arms  and  ammunition  is  not  liable  to  forfeiture.^ 

The  next  point  to  which  attention  must  be  drawn  is  the  intent  with  Intent  required 
which  the  several  acts  above  defined  must  be  performed.  The  statute  ^ 
requires  that  the  acts  of  fitting  out  and  arming,  etc.,  must  be  done 
with  intent  to  commit  hostilities,  thus  distinguishing  between  the  ordi- 
nary business  of  ship-building  and  the  unlawful  practice  of  preparing 
vessels  to  be  used  against  a  friendly  state.  The  question  as  to  the 
existence  of  this  intent  has  been  a  source  of  much  difficulty  for  the 

128  Fed.  Rep.,  148. 

285  Fed.  Rep.,  760. 

^2,7  Fed.  Rep.,  799. 

United  States  v.  214  Boxes  Arms,  etc.,  20  Fed.  Rep.,  50. 

*The  Itata,  56  Fed.  Rep.,  505. 


70 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Distinction 
between    commer- 
cial and  hostile 
intent.     Case  of 
the  Meteor. 


courts,  as  must  happen  in  all  cases  where  the  act  contains  nothing  in 
itself  that  is  unlawful,  from  which  the  existence  of  the  criminal  intent 
might  be  inferred.  The  intent  must  be  to  commit  hostilities  against 
a  friendly  state.  How  far  can  this  intent  be  said  to  be  present,  con- 
structively, in  the  mind  of  one  who  fits  out  and  arms  a  vessel  for 
commercial  purposes?  In  the  proceedings  before  the  District  Court 
in  the  case  of  the  Meteor^  above  referred  to,  the  counsel  for  the 
claimants  (owners)  laid  great  stress  upon  the  fact  that  citizens  of  a 
neutral  country  have  an  acknowledged  right  to  sell  in  their  own 
ports,  to  either  belligerent,  arms  and  munitions  of  war,  and  that  this 
right  included  the  right  to  sell  a  vessel  of  war,  whether  armed  or 
unarmed.  In  support  of  this  contention,  the  claimants  relied  upon 
the  decision  of  the  court  in  the  case  of  the  Santissima  Trinidad,'^  »de- 
cided  in  1822.  In  that  case,  it  was  held  by  Justice  Story,  though  as 
an  obiter  dictum,  that  "there  is  nothing  in  our  laws,  or  in  the  law  of 
nations,  that  forbids  our  citizens  from  sending  armed  vessels,  as  well 
as  munitions  of  war,  to  foreign  ports  for  sale.  It  is  a  commercial  ad- 
venture which  no  nation  is  bound  to  prohibit ;  and  which  only  exposes 
the  persons  engaged  in  it  to  the  penalty  of  confiscation."  In  answer 
to  this  contention  the  court  pointed  out  that  the  case  of  the  Santissima 
Trinidad  involved  the  sale  of  a  vessel  in  a  foreign  port,  whereas  the 
sale  of  the  Meteor  took  place  in  a  port  of  the  United  States,  and  that 
there  was  lacking  in  the  latter  case  the  element  of  "commercial  adven- 
ture" present  in  the  former.  In  illustration  of  what  was  not  a  "com- 
mercial adventure,"  the  court  referred  to  the  case  of  the  Gran  Para,^ 
decided  at  the  same  term  as  the  case  of  the  Santissima  Trinidad,  in 
which  Chief  Justice  Marshall  found  a  violation  of  Sec.  5283  in  the 
fact  that  the  vessel  in  question  "was  purchased,  and  that  she  sailed 
out  of  the  port  of  Baltimore,  armed  and  manned  as  a  vessel  of  war, 
for  the  purpose  of  being  employed  as  cruiser  against  a  nation  with 
whom  the  United  States  were  at  peace."  The  conclusion  reached  by 
the  court  was  that  "the  sale  of  a  fully  armed  vessel  of  war  in  the 
United  States  to  a  belligerent  government,  or  to  a  subject  or  citi- 
zen of  such  government,  may  be,  as  a  naked  act,  lawful  and  no  offence 
against  the  law  of  nations  or  the  statutory  law  of  the  United  States ; 
but,  if  such  vessel  passes  virtually,  and  to  all  practical  intents  and  pur- 
poses, in  the  United  States,  into  the  control  of  the  belligerent  power, 
or  of  its  subject  or  citizen,  with  the  intent  on  the  part  of  those  con- 

117  Fed.  Cases,  No.  9,498. 
27  Wheat.,  283. 
^Ibid.    471. 


INTERPRETATION   OF   THE   NEUTRALITY  LAWS  71 

cerned  in  putting  tlie  vessel  under  such  control  that  she  shall  be  em- 
ployed in  the  service  of  the  belligerent  power,  to  cruise  or  commit 
hostilities  against  the  subjects,  citizens  or  property  of  a  power  at  war 
with  such  belligerent  and  at  peace  with  the  United  States,  the  neu- 
trality of  the  United  States  is  compromised,  and  the  neutrality  law 
of  the  United  States  is  violated.  *  *  *  The  intent  is,  under  the  third 
section,  the  thing  which  marks  the  offense."^  That  is  to  say,  a  sale  is 
legal,  but  if  the  vendee  takes  possession  of  his  property  and  the  ven- 
dor is  aware  that  the  vendee  will  use  the  vessel  for  the  purpose  for 
which  it  is  adapted,  the  sale  is  illegal.  Knowledge  on  the  part  of  the 
vendor  of  the  probable  ultimate  use  of  the  vessel  is  made  equivalent 
to  intent  on  his  part  that  the  vessel  shall  be  so  used.  The  intent  of 
the  vendor  is  thus  made  constructively  hostile  by  reason  of  the  intent 
of  the  vendee. 

This  was  putting  a  serious  strain  upon  the  meaning  of  the  word 
"intent."  Sec.  5283  was  originally  framed  to  check  the  practice  of  pri- 
vateering, and  the  clause  describing  the  intent  which  must  accompany 
the  act  of  fitting  out  and  arming  a  vessel  was  regularly  interpreted  to 
create  a  distinction  between  the  animus  vendendi,  the  lawful  intent 
of  building  and  fitting  out  armed  vessels  for  sale,  and  the  animus  bel- 
ligerandi,  the  unlawful  intent  of  building  and  fitting  out  armed  vessels 
to  cruise  as  privateers  against  a  friendly  state.^ 

On  appeal  to  the  Circuit  Court  a  decree  was  entered  reversing  the  Reversal  of  de- 
decision  of  the  District  Court.^     The  conclusions  reached  by  the  Cir-   vision  of  lower 

.    „  .  .  „  court, 

cult  Court  were  m  part  as  follows : 

1.  Although  negotiations  were  commenced  and  carried  on  be- 
tween the  owners  of  the  Meteor  and  agents  of  the  government 
of  Chile  for  the  sale  of  her  to  the  latter,  with  the  knowledge  that 
she  would  be  employed  against  the  government  of  Spain,  with 
which  Chile  was  as  war,  yet  these  negotiations  failed,  and  came 
to  an  end,  from  the  inability  of  the  agents  to  raise  the  amount  of 
the  purchase  money  demanded ;  and  if  the  sale  of  the  vessel  in 
its  then  condition  and  equipment,  to  the  Chilean  government, 
would  have  been  a  violation  of  our  neutrality  laws,  of  which  it  is 
unnecessary  to  express  any  opinion,  the  termination  of  the  nego- 
tiation put  an  end  to  this  ground  of  complaint. 

2.  The  furnishing  of  the  vessel  with  coal  and  provisions  for  a 
voyage  to  Panama,  or  some  other  port  of  South  America,  and 

117  Fed.  Cases,  No.  9,498. 

2See  La  Conception,  6  Wheat.,  235;  The  Bello  Corrunes,  6  Wheat.,  152;  The 
Santissima  Trinidad,  7  Wheat.,  283;  United  States  v.  Qtiincy,  6  Pet.,  445. 

326  Fed.  Cases,  No.  15,760. 


72 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Time  of  forming 
and  character  of 
intent. 


the  purpose  of  the  owners  to  send  her  thither,  in  our  judgment, 
was  not  in  pursuance  of  an  agreement  or  understanding  with 
the  agents  of  the  Chilean  government,  but  for  the  purpose  and 
design  of  finding  a  market  for  her;  and  that  the  owners  were 
free  to  sell  her  on  her  arrival  there  to  the  government  of  Chile, 
or  of  Spain,  or  of  any  other  government  or  person  with  whom 
they  might  be  able  to  negotiate  a  sale. 

During  the  trial  of  the  case  Justice  Nelson,  after  stating  the  inter- 
pretation which  Judge  Betts  had  put  upon  the  word  "intent,"  said :  "I 
cannot  imagine  a  sale  to  a  government  at  war  that  can  be  upheld  upon 
that  doctrine ;  because,  while  as  a  mere  commercial  transaction  the 
sale  of  a  war  vessel  is  conceded  to  be  legal,  yet  if  you  connect  with 
it  that  the  vessel  is  known  to  be  used  by  the  belligerent  against  his 
enemy,  then  it  is  illegal.  That  I  understand  to  be  the  doctrine  of 
Judge  Betts.  I  do  not  see,  therefore,  but  that  he  virtually  annuls  the 
right  to  sell." 

With  respect  to  the  time  of  forming  and  the  fixity  of  the  intent,  it 
is  stated  by  the  court  in  the  case  of  United  States  v.  Quincy^  that 
whereas  the  preparations,  according  to  the  very  terms  of  the  act, 
must  be  made  within  the  limits  of  the  United  States,  "it  is  equally 
necessary  that  the  intention  with  respect  to  the  employment  of  the 
vessel  should  be  formed  before  she  leaves  the  United  States.  And 
this  must  be  a  fixed  intention;  not  conditional  or  contingent,  depend- 
ing on  some  future  arrangements.  This  intention  is  a  question  be- 
longing exclusively  to  the  jury  to  decide.  It  is  the  material  point  on 
which  the  legality  or  criminality  of  the  act  must  turn;  and  decides 
whether  the  adventure  is  of  a  commercial  or  warlike  character."  Ac- 
cordingly, acts  done  in  pursuance  of  an  intent  not  formed  until  after 
the  vessel  had  left  the  limits  of  the  United  States  were  held  not  to 
constitute  an  offense  under  the  statute.^ 

But  while  the  unlawful  intent  must  exist  during  the  time  that  the 
vessel  is  being  fitted  out  and  armed,  it  is  not  necessary  that  it  be 
proximate  and  definite  in  character,  that  is,  one  with  an  immediate 
and  specific  object  in  view.  In  1848,  during  the  course  of  an  armis- 
tice in  the  hostilities  between  Germany  and  Denmark,  the  German 
government  purchased  and  fitted  out  a  war  vessel  in  the  port  of  New 

16  Pet.,  445.  See  also  an  opinion  of  Attorney  General  Legare,  3  Op.  Atty. 
Gen.,  741. 

2See  The  Laurada,  98  Fed.  Rep.,  983,  affirming  85  Fed.  Rep.,  760.  See  also 
the  early  case  of  Moodie  v.  The  Alfred,  3  Dall.,  307,  in  which  it  was  held 
that  a  vessel  which  had  been  built  in  New  York  for  use  as  a  privateer  in  case 
of  war  between  the  United  States  and  Great  Britian,  and  which  was  afterwards 
sold  to  a  French  citizen  and  used  by  him  as  a  privateer,  could  not  be  con- 
demned under  the  statute. 


INTERPRETATION   OF   THE   NEUTRALITY   LAWS  73 

York.  The  German  minister  contended  that  the  vessel  did  not  come 
within  the  provisions  of  Sec.  3  of  the  Act  of  1818,  because  its  proxi- 
mate intent  was  not  to  commit  hostilities  against  Denmark,  but  to 
repair  to  Bremerhaven  and  there  await  orders.  The  opinion  of  the 
Attorney  General  being  asked,  Mr.  Johnson  replied  that  "any  intent, 
direct  or  contingent,  ...  is  within  the  act.  .  .  .  The  war- 
like purpose  of  the  vessel  is  not  disclaimed;  but,  because  there  is  no 
actual  present  intent  to  cruise,  &c.,  and  because  she  may  reach  the 
place  of  her  first  destination  without  meeting  an  enemy,  and  peace 
may  be  restored  before  she  receives  orders  to  cruise,  the  intent  of 
her  equipment  is  innocent.  Such  is  not  the  meaning  of  the  law."^ 
It  is  not,  of  course,  necessary  that  the  intention  should  be  carried 
into  execution;  the  fact  that  it  is  defeated  by  subsequent  events  does 
not  purge  an  offense  which  was  previously  consummated. ^ 

The  determination  of  what  acts  are  necessary  to  constitute  the  What  acts  con- 
"hostilities"  which  the  vessel  is  fitted  out  to  commit  shows  another  tJjj^t^gg  »'^°^" 
instance  of  a  liberal  interpretation  of  the  law.  Apart  from  the  act 
of  directly  making  war  upon  the  enemy,  it  has  been  held  that  a  ves- 
sel may  be  guilty  of  complicity  in  the  acts  of  violence  of  those  whom 
it  is  transporting.  In  the  case  of  the  Mary  N.  Hogan,^  the  court  con- 
sidered that  there  was  sufficient  ground  to  show  an  intent  to  commit 
hostilities  from  the  evidence  that  "though  the  Hogan  was  wholly  un- 
adapted  to  effective  naval  operations  against  any  considerable  or- 
ganized opposition,  she  could  be  of  the  greatest  service  to  the  insur- 
gents by  her  light  draught  and  considerable  speed  in  landing  or  taking 
off  men  at  unprotected  points  on  the  coast  of  Hayti  by  watching  her 
opportunities  of  running  in  and  out,  as  well  as  in  offensive  demon- 
strations against  defenseless  parts  of  the  island,  with  little  to  fear 
from  the  slight  naval  resources  of  the  lawful  government."  In  the 
case  of  the  City  of  Mexico,'^  the  court  held  that  a  vessel  must  be  con- 
sidered as  committing  hostilities  when  it  is  part  and  portion  of  a 
hostile  expedition  either  by  carrying  troops,  not  as  mere  passengers, 
but  for  the  purpose  of  making,  if  necessary,  a  forcible  landing  for 
them,  or  by  acting  as  a  base  of  supplies  for  the  expedition.  "It  mat- 
ters but  little,"  it  was  said,  "in  the  effect  of  her  hostilities,  whether 
she  throw  shot  and  shell  from  her  ports,  or  despatch  boat-loads  of 

15  Op.  Atty.  Gen.,  92.     See  Dana's  Wheaton,  560,  note. 
2See  United  States  v.  Quincy,  6  Pet.,  445. 
318  Fed.  Rep.,  529. 
428  Fed.  Rep.,  148. 


74  NEUTRALITY  LAWS  OF  THE  UNITED   STATES 

armed  men  from  her  gang-ways."  In  the  case  of  the  Laurada,^  it  was 
definitely  stated  that  "the  term  'hostilities'  is  certainly  not  expressly 
limited  in  its  scope  by  the  section  to  strictly  maritime  warfare,  and 
may  include  all  hostilities  for  which  a  vessel  is  adapted ;"  and,  as  in 
the  preceding  case,  it  w^as  held  to  be  of  little  importance  whether  the 
vessel  carried  guns  suitable  for  naval  engagements,  or  had  a  crew 
armed  with  rifles  and  ammunition  to  effect  a  hostile  and  violent  land- 
ing of  a  military  expedition.  But  while  it  may  be  granted  that  it 
would  have  been  well  had  the  penalty  of  the  forfeiture  of  the  vessel 
been  imposed  for  complicity  in  the  military  expeditions  forbidden  by 
Sec.  5286,  it  seems  clear  that  in  the  original  intention  of  Sec.  5283  the 
actual  commission  by  the  vessel  itself  of  hostilities  was  contemplated. 
Bodies  to  which  We  next  pass  to  a  consideration  of  the  political  bodies  in  whose 

statute  IS  apph-  service  the  forbidden  acts  are  committed  and  against  whom  they  are 
committed.  The  words  are,  "in  the  service  of  any  foreign  prince  or 
state,  or  of  any  colony,  district  or  people  .  .  .  against  the  sub- 
jects, citizens  or  property  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people  with  whom  the  United  States  are  at  peace." 
It  has  been  pointed  out  before^  that  they  are  an  extension  of  the 
words  "foreign  prince  or  state"  found  in  the  Act  of  1794.  The  case 
of  Gelston  v.  Hoyt,^  decided  in  1818,  illustrates  the  limited  applica- 
tion of  the  Act  of  1794.  In  that  case  the  vessel  was  seized  for  for- 
feiture by  the  United  States  officers  on  the  ground  that  an  attempt 
had  been  made  to  fit  out  and  arm  the  vessel  with  the  intent  that  it 
should  be  employed  in  the  service  of  that  part  of  the  island  of  San 
Domingo  which  was  then  under  the  government  of  Petion,  to  commit 
hostilities  against  that  part  of  the  island  which  was  under  the  gov- 
ernment of  Christophe.  The  court  held  that  the  Act  of  1794  did  not 
apply  to  a  new  government  unless  it  had  been  recognized  by  the 
United  States  or  by  the  government  of  the  country  to  which  the  new 
state  formerly  belonged,  so  that  the  plea  of  the  United  States  officers 
which  set  up  a  forfeiture  under  that  act  in  fitting  out  a  vessel  to 
cruise  against  such  new  state  was  bad  in  that  it  did  not  aver  such 
recognition.  After  the  passage  of  the  Act  of  1818  there  could  be  no 
doubt  that  bodies  of  insurgents  whose  belligerency  had  been  recog- 
nized by  the  United  States  were  included  under  the  words  "colony, 
district,  or  people"  in  whose  service  a  vessel  might  not  be  employed 

185  Fed.  Rep.,  760.     See  also  the   decision   in  the  case  of   United  States  v. 
214  Boxes  Anns,  etc.,  20  Fed.  Rep.,  50. 
2See  Chap.  II,  p.  40. 
33  Wheat.,  246. 


INTERPRETATION   OF  THE   NEUTRALITY  LAWS  75 

to  commit  hostilities  against  a  friendly  state,  and  against  whom  the 
hostilities  were  not  to  be  committed.^ 

In  respect  to  bodies  of  insurgents  who  have  not  been  recognized  as  Distinction  in 
belligerents  it  is  important  to  note  that  there  is  a  distinction  in  principle  'nterpretation 
between  the  use  of  the  words  "of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people"  as  describing  the  political  bodies  for 
whose  service  a  vessel  may  not  be  fitted  out  and  armed  and  the  use  of 
the  same  words  as  describing  the  political  bodies  against  whom  the 
vessel  is  intended  to  commit  hostilities.  In  the  latter  case,  foreign 
prince,  state,  colony,  district,  or  people,  describe  the  political  bodies 
towards  whom  the  United  States  is  under  an  obligation  to  observe  the 
status  of  neutrality,  and  in  this  connection  the  words  are  perhaps  more 
comprehensive  than  necessary.  From  the  point  of  view  of  international 
law  the  obligations  of  the  United  States  do  not  extend  to  the  repression 
of  acts  committed  within  its  jurisdiction  against  bodies  of  insurgents 
who  have  not  been  recognized  as  belligerents,  nor,  legally  speaking,  even 
to  the  repression  of  acts  committed  against  communities  whose  de 
facto  belligerency  has  been  recognized,  but  who  are  not  yet  legal 
persons  in  international  law.  On  the  other  hand,  the  friendly  rela- 
tions of  the  United  States  would  be  compromised  if  hostilities  were 
to  be  committed  within  its  jurisdiction  in  the  service  of  any  political 
bodies  or  persons  whatsoever  against  a  recognized  foreign  state. 

As  illustrating  the  comprehensive  meaning  attached  to  the  words  Comprehensive 
"colony,  district,  or  people"  when  they  refer  to  political  bodies  in  ^"  ^^P^^ 
whose  service  a  vessel  may  not  be  fitted  out  and  armed,  we  have  the 
case  of  the  Three  Friends^  decided  in  1897.  In  November,  1896, 
the  steamer  Three  Friends  was  seized  and  libeled  on  behalf  of  the 
United  States  for  having  been  fitted  out  and  armed  in  the  service 
of  "a  certain  people"  then  engaged  in  armed  resistance  to  the  King 
of  Spain  in  the  island  of  Cuba.  On  behalf  of  the  owners  it  was 
argued  that  the  words  "colony,  district,  or  people"  applied  only  to 
recognized  insurgents,  and  that  since  the  insurgents  in  Cuba  had  not 
yet  been  recognized  by  the  United  States,  there  was  no  offense  under 
the  statute.  Chief  Justice  Fuller,  in  delivering  the  opinion  of  the 
court,  argued  that  the  word  "state"  might  with  reason  be  held  to  in- 
clude recognized  belligerents,  leaving  the  words  "colony,  district,  or 
people"  to  be  applied  to  unrecognized  belligerents.  However,  even 
if  the  word  "state"  admitted  of  a  less  liberal  signification,  why  should 
the  meaning  of  the  words  "colony,  district,  or  people"  be  confined 

iSee  Chap.  II,  p.  39. 
2166  U.  S.,  1. 


76  NEUTRAL]  lY    LAWS  OF  THE   UNITED   STATES 

only  to  parties  recognized  as  belligerents?  "The  word  'people'  .  .  . 
taken  in  connection  with  the  words  'colony'  and  'district'  covers  in  our 
judgment  any  insurgent  or  insurrectionary  'body  of  people  acting 
together,  undertaking  or  committing  hostilities,'  although  its  belliger- 
ency has  not  been  recognized." 
Restrictive  As  illustrating  the  less  comprehensive  meaning  of  the  words  "col- 

interpretation.  ^^y^  district,  or  people"  when  used  to   describe  the  political  bodies 

against  whom  hostilities  must  not  be  committed  we  have  the  case  of 
the  Carondolet,  decided  in  1889.^  In  August,  1888,  the  existing  gov- 
ernment in  Haiti  was  overthrown  and  the  President  of  the  republic 
deposed  and  banished.  On  December  8th  of  the  same  year,  Presi- 
dent Cleveland  in  his  message  to  Congress  said  that  "the  tenure 
of  power  [in  Haiti]  has  been  so  unstable  amid  the  war  of 
factions  that  has  ensued  since  the  expulsion  of  President  Salo- 
mon that  no  government  constituted  by  the  will  of  the  Haytian 
people  has  been  recognized  as  administering  responsibly  the 
affairs  of  that  country."  On  February  18,  1889,  the  Carondolet 
was  libeled  for  forfeiture  for  having  been  fitted  out  and  armed  to 
aid  a  faction  led  by  Hippolyte  against  a  faction  led  by  Legitime,  in 
the  struggle  for  supremacy  then  going  on  in  Haiti.  In  the  opinion  of 
the  court  it  was  stated  as  an  obiter  dictum  that  "there  can  be  no  obli- 
gation of  neutrality  except  towards  some  recognized  state  or  power, 
de  jure  or  de  facto.  Neutrality  presupposes  at  least  two  belligerents ; 
and,  as  respects  any  recognition  of  belligerency,  i.  e.,  of  belligerent 
rights,  the  judiciary  must  follow  the  executive.  To  fall  within  the 
statute,  the  vessel  must  be  intended  to  be  employed  in  the  service  of 
a  foreign  prince,  state,  colony,  district,  or  people,  to  cruise  or  com- 
mit hostilities  against  the  subjects,  citizens,  or  property  of  another, 
with  which  the  United  States  are  'at  peace.'  The  United  States  can 
hardly  be  said  to  be  'at  peace,'  in  the  sense  of  the  statute,  with  a  fac- 
tion which  they  are  unwilling  to  recognize  as  a  government ;  nor 
could  the  cruising,  or  committing  of  hostilities,  against  such  a  mere 
faction  well  be  said  to  be  comm.itting  hostilities  against  the  'subjects, 
citizens,  or  property  of  a  district  or  people,'  within  the  meaning  of  the 
statute.  So,  on  the  other  hand,  a  vessel,  in  entering  the  service  of  the 
opposite  faction  of  Hippolyte,  could  hardly  be  said  to  enter  the  service 
of  a  foreign  'prince  or  state,  or  of  a  colony,  district,  or  people,'  unless 
our  government  had  recognized  Hippolyte's  faction  as  at  least  consti- 
tuting a  belligerent,  which  it  does  not  appear  to  have  done."  On  this 
latter  point  only  the  opinion  of  the  court  was  overruled  by  the  case 

137  Fed.  Rep.,  799. 


INTERPRETATION   OF   THE    NEUTRALITY  LAWS  17 

of  the  Three  Friends,  referred  to  above.  In  the  same  year,  and  with 
reference  to  the  same  warring  factions  in  Haiti,  it  was  held  in  the 
case  of  the  Conserva}  that  in  order  to  justify  the  forfeiture  of  a  ves- 
sel under  Revised  Statutes,  Sec.  5283,  the  fact  must  be  shown  that 
the  government  against  which  it  is  alleged  the  vessel  is  intended  to 
commit  hostilities  has  been  recognized  by  the  United  States.^ 

In  a  dissenting  opinion  in  the  case  of  the  Three  Friends,  Justice 
Harlan  argued  that  the  words  "colony,  district,  or  people,"  where  they 
first  appear  in  Sec.  5283,  cannot  have  a  different  meaning  from  the 
same  words  in  the  subsequent  clause  "colony,  district,  or  people,  with 
whom  the  United  States  are  at  peace" ;  and  that  the  United  States 
cannot  properly  be  said  to  be  "at  peace"  or  not  "at  peace"  with  in- 
surgents who  have  no  government  except  on  paper  and  no  power  of 
administration  and  who  are  merely  nomads.  The  argument  was  an- 
ticipated by  Chief  Justice  Fuller,  who  pointed  out  that  the  words  as 
used  in  the  two  connections  are  "affected  by  obviously  different  con- 
siderations," and  that  "if  the  necessity  of  recognition  in  respect  to 
the  objects  of  hostilities,  by  sea  or  land,  were  conceded,  that  would 
not  involve  the  concession  of  such  necessity  in  respect  of  those  for 
whose  service  the  vessel  is  fitted  out."  The  interpretation  of  Chief 
Justice  Fuller  is  certainly  the  one  more  in  accord  with  the  interna- 
tional obligations  of  the  United  States. 

It  does  not  follow  that  because  the  courts  have  been  willing  to  in-  Duties  of  neu- 

terpret  the  phrase  "colony,  district  or  people"  so  as  to  include  bodies  ^rahty  do  not 

^  ^.  •'  r      r  apply   to    unrecog- 

of   unrecognized    insurgents,    they    thereby    intend    that    the    interna-  nized  insurgents. 

tional  law  of  neutrality  is  to  apply  to  such  insurgents.  The  Neutral- 
ity Act  is  a  municipal  statute,  and  the  judicial  interpretation  of  its 
terms  does  not  necessarily  imply  corresponding  obligations  in  inter- 
national law.  The  obligation  acknowledged  by  the  United  States  to 
prevent  its  territory  from  being  made  the  starting  point  of  expeditions 
in  the  interest  of  a  body  of  unrecognized  insurgents,  should  be  classed 
not  as  an  obligation  devolving  at  international  law  upon  the  status  of 
neutrality,  but  as  an  obligation  resulting  from  the  status  of  peace  be- 

138  Fed.  Rep.,  431. 

2In  1869,  an  opinion  was  rendered  by  Attorney  General  Hoar  to  the  effect 
that  the  provisions  of  Sec.  3  of  the  Act  of  1818  were  not  applicable  to  the 
case  of  certain  gunboats  which  were  being  built  in  New  York  for  the  Spanish 
government  and  which  there  was  reason  to  believe  were  to  be  employed  by 
that  government  against  insurgents  in  Cuba.  When  a  nation  undertakes  to 
procure  vessels  for  the  purpose  of  enforcing  its  own  recognized  authority 
within  its  own  domains,  "in  a  legal  view,"  said  the  Attorney  General,  "this 
does  not  involve  a  design  to  commit  hostilities  against  anybody."  13  Op.  Atty. 
Gen.,  177. 


78  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

tween  the  United  States  and  the  state  against  which  such  an  expe- 
dition is  directed;  and  it  will  be  shown  below^  that  Sec.  5286  has 
been  held  to  apply  to  cases  of  expeditions  setting  out  from  the  United 
States  against  a  foreign  state  when  there  were  no  conditions  of  do- 
mestic insurrection  in  that  state.  In  this  sense  it  is  possible  to  ex- 
plain such  statements  as  that  of  Attorney  General  Harmon  to  the 
effect  that  ''the  rules  of  international  law  with  respect  to  belligerent 
and  neutral  rights  and  duties  do  not  apply  to  the  present  case.  Neither 
Spain  nor  any  other  country  has  recognized  the  Cuban  insurgents  as 
belligerents."-  But  it  is  submitted  that  the  Attorney  General  went 
too  far  in  holding  that  when  a  state  of  war  is  declared  by  another 
country,  the  United  States  must  of  its  own  motion  use  due  vigilance 
to  prevent,  within  its  borders,  the  formation  or  departure  of  any 
military  expedition  intended  to  take  part  in  such  war;  but  on  the 
other  hand,  when  a  state  of  war  is  not  so  declared,  "it  is  by  no  means 
certain  that  knowledge  of  the  existence  of  a  mere  insurrection,  even 
when  its  location  or  alleged  motives  may  be  thought  likely  to  lead 
to  violations  of  our  laws  in  its  behalf,  imposes  any  general  duty  of 
watchfulness,  the  neglect  of  which  would  be  just  ground  of  com- 
plaint by  the  nation  involved  which  does  not  itself  acknowledge  a 
state  of  war.''^ 
Forfeiture  of  With  respect  to  the  specific  punishment  appointed  for  the  persons 

■^^^^^^^  concerned  in  the  forbidden  acts  and  for  the  vessel  which  is  their  in- 

strument, it  may  be  observed  that  there  is  no  necessity  of  joint  con- 
demnation at  the  same  time  of  both  persons  and  vessel.  In  the  case 
of  the  Three  Friends,  it  was  held  that  "the  contention  that  forfeit- 
ure under  United  States  Revised  Statutes  Sec.  5283  depends  upon  the 
conviction  of  a  person  or  persons  for  doing  the  acts  denounced  is 
untenable.  This  suit  is  a  civil  suit  in  rem  for  the  condemnation  of 
the  vessel  only,  and  is  not  a  criminal  prosecution.  The  two  proceed- 
ings are  wholly  independent  and  pursued  in  different  courts,  and  the 
result  in  each  might  be  different." 

Arming  Vessel  to  Cruise  Against  Citizens  of  the 
United  States. 
Sec.  4  of  Act  of  Sec.    5284.     Every   citizen   of   the  United    States   who,   with- 

April  20,  1818.  out  the  limits  thereof,  fits  out  and  arms,  or  attempts  to  fit  out 

and  arm,  or  procures  to  be  fitted  out  and  armed,  or  knowingly 
aids  or  is  concerned  in  furnishing,  fitting  out,  or  arming  any  pri- 

iSee  p.  82. 

221  Op.  Atty.  Gen.,  267. 

8/61U   271-272. 


INTERPRETATION   OF  THE   NEUTILVLITY  LAWS  79 

vate  vessel  of  war,  or  privateer,  with  intent  that  such  vessel 
shall  be  employed  to  cruise,  or  commit  hostilties,  upon  the  citi- 
zens of  the  United  States,  or  their  property,  or  who  takes  com- 
mand of,  or  enters  on  board  of  any  such  vessel,  for  such  intent, 
or  who  purchases  any  interest  in  any  such  vessel,  with  a  view  to 
share  in  the  profits  thereof,  shall  be  deemed  g-uilty  of  a  high 
misdemeanor,  and  fined  not  more  than  ten  thousand  dollars,  and 
imprisoned  not  more  than  ten  years.  And  the  trial  for  such  of- 
fense, if  committed  without  the  limits  of  the  United  States,  shall 
be  in  the  district  in  which  the  offender  shall  be  apprehended 
or  first  brought. 

This  section,  as  was  pointed  out  in  Chapter  11,^  is  based  upon  the   Has  no  connec- 

Act  of  Tune  14,  1797.     In  the  Act  of  1818  that  part  of  the  Act  of  tion  with 
•'  '■  ,     neutrality. 

1797  which  related  to  hostilities  committed  upon  the  "subjects,  citi- 
zens, or  property  of  any  prince  or  state  with  whom  the  United  States 
are  at  peace,"  was  omitted.  The  rest  of  the  Act  was  retained,  in 
spite  of  the  fact  that  with  the  above  clause  omitted  it  had  become 
practically  meaningless.  A  person  who  fits  out  and  arms  a  vessel 
with  intent  that  the  vessel  shall  be  employed  to  commit  hostilities 
upon  the  citizens  of  the  United  States  is  an  accomplice  in  the  crime  of 
piracy,  and  may  be  prosecuted  accordingly,  whether  or  not  he  is  a 
citizen  of  the  United  States,  and  whether  the  fitting  out  and  arming 
of  the  vessel  took  place  within  or  without  the  jurisdiction  of  the 
United  States.  In  any  case,  the  offense  defined  by  the  statute  as 
it  now  stands  has  no  connection  with  violations  of  the  neutrality  of 
the  United  States ;  accordingly,  the  prohibition  of  it  does  not  properly 
come  within  the  scope  of  laws  intended  to  give  effect  to  the  obliga- 
tions of  the  United  States  as  a  neutral  state.^ 

Augmenting  Force  of  a  Foreign  Vessel  of  War. 

Sec.  5285.  Every  person  who,  within  the  territory  or  juris-  Sec.  5  of  Act  of 
diction  of  the  United  States,  increases  or  augments,  or  procures  April  20,  1818. 
to  be  increased  or  augmented,  or  knowingly  is  concerned  in  in- 
creasing or  augmenting,  the  force  of  any  ship  of  war,  cruiser  or 
other  armed  vessel,  which,  at  the  time  of  her  arrival  within  the 
United  States,  was  a  ship  of  war,  or  cruiser,  or  armed  vessel,  in 
the  service  of  any  foreign  prince  or  state,  or  of  any  colony,  dis- 
trict or  people,  or  belonging  to  the  subjects  or  citizens  of  any  such 
prince,  or  state,  colony,  district,  or  people,  the  same  being  at  war 
with  any  foreign  prince  or  state,  or  of  any  colony,  district  or 
people  with  whom  the  United  States  are  at  peace,  by  adding  to 
the  number  of  the  guns  of  such  vessel,  or  by  changing  those  on 

iSee  p.  30. 

2See  Chap.  IV,  p.  141. 


80 


NEUTRALITY   LAWS  OF  THE  UNITED   STATES 


Proof  of  intent 
not  necessary. 


Oifenses    created. 


Restitution 
prizes. 


of 


board  of  her  for  guns  of  a  larger  caliber,  or  by  adding  thereto 
any  equipment  solely  applicable  to  war,  shall  be  deemed  guilty 
of  a  high  misdemeanor,  and  shall  be  fined  not  more  than  one 
thousand  dollars  and  be  imprisoned  not  more  than  one  year. 

By  way  of  general  comment  upon  this  section  it  is  to  be  observed 
that  as  far  as  the  act  itself  of  increasing  or  augmenting  the  force  of 
a  foreign  ship  of  war  is  concerned,  it  might  properly  be  included 
within  the  meaning  of  the  term  "fits  out  and  arms,"  used  in  Sec.  5283. 
But  inasmuch  as  the  ship  of  war  to  which  the  statute  applies  must 
be  at  the  time  of  its  arrival  in  the  United  States  either  in  the  service 
of  a  foreign  prince  or  state,  etc.,  or  the  property  of  the  subjects  or 
citizens  of  a  foreign  prince  or  state,  etc.,  the  same  being  at  war  with 
any  foreign  prince  or  state,  etc.,  with  whom  the  United  States  are  at 
peace,  it  is  seen  that  there  is  no  necessity  of  proving  the  intent  which 
constitutes  the  gravamen  of  the  offense  under  Sec.  5283.  The  crimi- 
nal intent  is  to  be  presumed  from  the  fact  that  the  vessel  whose  force 
is  augmented  is  clearly  to  be  used  to  commit  hostilities  against  a  for- 
eign state  with  whom  the  United  States  are  at  peace.  It  is  the  ab- 
sence, therefore,  of  the  necessity  of  proving  with  what  intent  the  pro- 
hibited acts  are  done  which  distinguishes  Sec.  5285  from  Sec.  5283. 

Moreover,  this  section  was  designed  to  provide  specifically  for  defi- 
nite offenses  which  were  being  committed  at  the  time  of  the  passage 
of  the  original  Act  of  1794.  Three  offenses  are  defined:  the  act  of 
increasing  or  augmenting  the  force  of  a  ship  of  war,  the  act  of  pro- 
curing such  increase  or  augmentation,  and  the  act  of  being  knowinglv 
concerned  in  such  increase  or  augmentation.  The  different  acts  may 
take  any  one  of  three  definite  forms:  an  addition  to  the  existing  num- 
ber of  guns;  the  substitution  of  guns  of  a  larger  caliber;  and  the  ad- 
dition of  equipment  solely  applicable  to  war.  A  strict  interpretation 
of  the  statute  would  seem  to  require  that  any  addition  to  the  force  of 
the  vessel  which  does  not  take  one  of  the  above  three  forms  could  not 
be  prosecuted  under  Sec.  5284 ;  but  it  will  be  seen  below  that  the 
courts  regarded  the  three  forms  of  augmentation  of  force  as  descrip- 
tive rather  than  as  restrictive. 

In  a  number  of  early  cases,  prizes  captured  by  foreign  privateers 
which  had  augmented  their  force  within  the  United  States  were  re- 
stored to  their  owners.^  As  the  prohibited  acts  were  set  forth  in  defi- 
nite terms,  there  was  little  difficulty  in  passing  upon  what  should  consti- 
tute an  increase  or  augmentation  of  force.    In  one  case  it  was  held  that 


^See  The  Nancy,  4  Fed.  Cases,  No.  1,898;  The  Betty  Carthcart,  17  Fed.  Cases, 
No.  9,742. 


INTERPRETATION   OF  THE   NEUTRALITY  LAWS  81 

the  repairing  of  the  waist  of  the  vessel,  and  the  cutting  of  two  ports  in 
it  for  guns,  was  not  sufficient  to  constitute  an  offense  under  Sec.  5285.^ 
In  the  case  of  Moodie  v.  The  Phoebe  Anne,-  the  court  refused  to  re- 
store a  British  vessel  brought  as  prize  into  the  port  of  Charleston  by  a 
French  privateer  which  had  previously  made  certain  repairs  in  that 
port,  the  repairs  having  been  of  a  purely  nautical  character.  The  fact 
that  the  guns  had  been  taken  out  during  the  course  of  repairs  and  then 
replaced  was  held  not  to  constitute  an  augmentation  of  force.^  In  the 
case  of  the  Alerta  v.  Moran*  the  court  did  not  consider  that  the 
augmentation  of  the  force  of  foreign  ships  of  war  need  necessarily 
take  one  of  the  forms  mentioned  in  the  statute.  It  was  held  that  the 
act  of  shipping  on  board  certain  persons  "as  an  addition  to  the  crew 
of  the  privateer"  constituted  an  illegal  increase  of  the  force  of  the 
vessel  [UEpine]  and  therefore  invalidated  whatever  prizes  might  be 
made  by  the  vessel  after  her  departure  from  the  United  States.  A 
similar  decision  was  rendered  in  the  case  of  the  Santissima  Trini- 
dad.^ The  court  held  that  "there  was  an  illegal  augmentation  of  the 
force  of  the  Independencia  in  our  ports  by  a  substantial  increase  of 
her  crew ;  and  this  renders  it  wholly  unnecessary  to  enter  into  an  in- 
vestigation of  the  question,  whether  there  was  not  also  an  illegal  in- 
crease of  her  armament."  In  1844  an  opinion  was  rendered  by  At- 
torney General  Nelson,  in  which  he  held  that  the  commanders  and 
officers  of  vessels  of  other  nations  found  to  have  violated  this  section 
of  the  statute  were  amenable  to  the  criminal  jurisdiction  of  the  United 
States  courts  and  might  be  successfully  prosecuted.® 

Military  Expeditions  Against  People  at  Peace 
with  the  United  States. 
Sec.   2586.  Every   person   who,   within  the  territory   or   juris-    Sec.  6  of  Act  of 
diction  of  the  United  States,  begins,  or  sets  on  foot,  or  provides   April  20,  1818. 

iSee  The  Brothers,  17  Fed.  Cases,  No.  9,743. 

23  Dall.,  319. 

^See  also  an  opinion  of  Attorney  General  Nelson,  in  1844,  to  the  effect  that 
the  repair  of  the  bottoms,  copper,  etc.,  of  certain  Mexican  war  steamers  in 
the  port  of  New  York  did  not  constitute  an  increase  or  augmentation  of 
their  force  within  the  meaning  of  the  act  of  1818.    4  Op.  Atty.  Gen.,  336. 

*9  Cranch,  359. 

67  Wheat,  283. 

H  Op.  Atty.  Gen.,  336.  "I  am  further  of  opinion,  that  the  steamers  themselves 
are  not  subject  to  seizure  by  any  judicial  process  under  the  act  of  Congress; 
but  that  their  commanders  and  officers  are  amenable  to  the  criminal  juris- 
diction of  our  courts  for  violations  of  the  statute  in  question.  The  very  purpose 
of  the  act  would  be  defeated  were  it  otherwise;  and  there  is  no  principle  of 
which  I  am  aware  which  exempts  from  responsibility  for  criminal  acts,  within 
our  jurisdiction,  the  commanders  or  officers  of  ships-of-war  of  other  nations 
with  whom  we  are  at  peace."  The  opinion  of  the  attorney  general  is  not 
in  accord  with  international  law  of  the  present  day.     See  Moore,  II,  §256. 


82  NEUTRALITY  LAWS  OF  THE  UNITED   STATES 

or  prepares  the  means  for,  any  military  expedition  or  enterprise, 
to  be  carried  on  from  thence  against  the  territory  or  dominions 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  peo- 
ple, with  whom  the  United  States  are  at  peace,  shall  be  deemed 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  exceeding 
three  thousand  dollars,  and  imprisonec^  not  more  than  three 
years. 

Bodies  to  which  Before  considering  the   different  acts  which   constitute  an   offense 

apphcable.  under  this  section,  attention  must  be  called  to  the  fact  that  there  is 

no  mention  in  the  statute  of  the  foreign  political  bodies  in  whose  serv- 
ice the  military  expedition  might  be  set  on  foot.  Hence,  in  the  case 
of  expeditions  in  the  service  of  insurgent  bodies  in  revolt  against  a 
state  with  which  the  United  States  might  be  at  peace,  no  question 
could  arise  as  to  whether  the  insurgents  had  been  recognized  by  the 
United  States  as  belligerents,  so  that  the  earlier  interpretation  of  that 
point  in  Sec.  5283  had  never  any  application  to  this  section.  The 
statement  made  in  the  recent  case  of  Wihorg  v.  United  States,'^  that 
the  operation  of  the  statute  was  "not  necessarily  dependent  on  the 
existence  of  such  state  of  belligerency,"  must  be  assumed  to  have  been 
made  with  reference  to  the  political  bodies  in  whose  service  the  expe- 
dition was  set  on  foot;  and  was  evidently  not  meant  to  apply  to  polit- 
ical bodies  against  whom  the  expedition  was  organized,  since  in  a  later 
case^  Chief  Justice  Fuller,  who  delivered  both  opinions,  deliberately 
refrained  from  holding  that  there  was  no  necessity  of  recognizing  a 
status  of  belligerency  with  respect  to  the  parties  against  whom  hostil- 
ities are  committed. 

The  statute,  indeed,  does  not  by  its  terms  require  the  existence  of 
a  state  of  war  in  a  foreign  country.  Hence,  although  it  was  originally 
enacted  as  part  of  a  general  act  in  fulfilment  of  the  neutral  duties  of 
the  United  States,  it  has  been  made  to  apply  to  cases  where  armed 
expeditions  were  set  on  foot  in  the  United  States  for  the  invasion  of 
a  foreign  state,  even  when  there  were  no  conditions  of  domestic  in- 
surrection in  such  foreign  state.  In  the  case  of  United  States  v. 
O'Sullivan,^  it  was  contended  by  tlie  defendants  that  the  Neutrality 
Acts  of  1794  and  1818  were  "intended  to  have  operation  only  in  case 
of  war  between  nations  in  amity  with  the  United  States"  and  con- 
sequently that  they  did  not  apply  to  an  expedition  not  set  on  foot  in  the 
interest   of   one  belligerent  party   against   another.      In   answer,   the 

1163  U.  S.,  632. 

^The  Three  Friends,  166  U.  S.,  1. 

327  Fed.  Cases,  No.  15,974. 


INTERPRETATION   OF  THE   NEUTRALITY  LAWS  83 

court  held  that  the  Act  of  1794  "was  called  for  and  always  accepted 
and  enforced  as  a  law,  no  less  of  non-interference  by  our  citizens — ^by 
military  expeditions  against  nations  at  peace  with  all  the  world,  than 
one  prohibiting  acts  of  hostility  in  favor  of  any  belligerent  power 
against  another  at  peace  with  the  United  States."^ 

The  offenses  under  the  statute  are  defined  disjunctively.  A  very  Distinct  offenses 
careful  analysis  of  the  several  acts  which  constitute  an  offense  was  created, 
made  in  a  charge  to  the  grand  jury  by  Judge  McLean,^  delivered  in 
1851  with  reference  to  a  recent  military  expedition  against  Cuba.  "To 
'begin'  the  military  expedition  .  .  .  is  to  do  the  first  act  which  may 
lead  to  the  enterprise.  The  offense  is  consummated  by  any  overt  act 
which  shall  be  a  commencement  of  the  expedition,  though  it  should 
not  be  prosecuted.  .  .  .  To  set  it  on  foot  may  imply  some  prog- 
ress beyond  that  of  beginning  it.  Any  combination  of  individuals  to 
carry  on  the  expedition  is  'setting  it  on  foot,'  and  the  contribution  of 
money  or  anything  else  which  shall  induce  such  combination,  may  be 
a  beginning  of  the  enterprise.  'To  provide  the  means  for  such  an 
enterprise,'  is  within  the  statute.  To  constitute  this  offense,  the  indi- 
vidual need  not  engage  personally  in  the  expedition.  If  he  furnish 
the  munitions  of  war,  provisions,  transportation,  clothing,  or  any 
other  necessaries,  to  men  engaged  in  the  expedition,  he  is  guilty."* 
However,  in  an  indictment  for  any  of  the  above  acts  the  principle 
holds  that  some  overt  act  is  necessary  to  secure  conviction.  In  the 
case  of  United  States  v.  Lumsden*  the  court  stated  that  "no 
proposition  can  be  clearer  than  that  some  definite  act  or  acts,  of  which 
the  mind  can  take  cognizance,  must  be  proved  to  sustain  the  charges 
against  these  defendants.  Mere  words,  written  or  spoken,  though 
indicative  of  the  strongest  desire  and  the  most  determined  purpose 
to  do  the  forbidden  act,  will  not  constitute  the  offense."  Some  "dis- 
tinctive substantive  fact"  must  be  proved.    Moreover,  it  was  held  that 

iSee  also  a  letter  of  Secretary  of  State  Bayard  on  July  31,  1885,  to  the 
Spanish  minister,  in  which  he  says  that  "the  phrase  'neutrality  act'  is  a  dis- 
tinctive name,  applied  for  convenience  sake  merely,  as  is  the  term  'foreign 
enlistment  act'  to  the  analogous  British  statute.  The  scope  and  purpose  of 
the  act  are  not  thereby  declared  or  restricted.  The  act  itself  is  so  compre- 
hensive that  the  same  provisions  which  prevent  our  soil  from  being  made  a  base 
of  operations  by  one  foreign  belligerent  against  another  likewise  prevent  the 
perpetration  within  our  territory  of  hostile  acts  against  a  friendly  people  by 
those  who  may  not  be  legitimate  belligerents,  but  outlaws  in  the  light  of  the 
jurisprudence  of  nations.  There  is  and  can  be  no  'neutrality'  in  the  latter  case." 
For.  Rel.,  1885,  776-777.  The  same  point  is  made  in  an  opinion  of  Attorney 
General  Harmon,  21  Op.  Atty.  Gen.,  267. 

230  Fed.  Cases,  No.  18,267. 

^Ibid. 

426  Fed.  Cases,  No.  15,641. 


84 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


a 
dition. 


if  the  proof  shows  "that  means  were  procured,  to  be  used  on  the  oc- 
currence of  some  future  contingent  event,  no  liability  is  incurred 
under  the  statute."  The  following  acts,  among  others,  have  been 
held  to  come  within  the  statute :  The  enlistment  of  men  for  the  expe- 
dition/ the  contribution  of  money,  clothing,  provisions,  arms,  etc. ,2 
the  furnishing  of  transportation  for  the  troops  so  collected.^ 
What  constitutes  With  respect  to  the  determination  of  what  constitutes  a  military 
ition'"^'^  ^^^^'  expedition  or  enterprise,  there  are  a  number  of  cases  setting  forth  in 
detail  the  precise  acts  and  the  circumstances  under  which  they  must 
be  performed.  The  two  important  points  requiring  determination 
are,  first,  what  number  of  men  and  what  extent  of  organization  among 
them  is  necessary  to  constitute  an  "expedition" ;  and  secondly,  how  far 
must  this  body  of  men  have  arms  and  ammunition  in  their  possession 
in  order  to  stamp  the  expedition  as  a  "military"  one?  On  the  first 
point,  we  have  the  case  of  United  States  v.  Y banes*  decided  in  1892, 
holding  that  "this  statute  does  not  require  any  particular  number  of 
men  to  band  together  to  constitute  the  expedition  or  enterprise  one 
of  a  military  character.  There  may  be  divisions,  brigades,  and  regi- 
ments, or  there  may  be  companies  or  squads  of  men.  Mere  numbers 
do  not  conclusively  fix  and  stamp  the  character  of  the  expedition  as 
military  or  otherwise.  A  few  men  may  be  deluded  with  the  belief 
of  their  ability  to  overturn  an  existing  government  or  empire,  and, 
laboring  under  such  delusion,  they  may  enter  upon  the  enterprise."^ 
In  the  case  of  United  States  v.  Wihorg,^  it  was  held  that  "it  is  not 
necessary  that  the  men  shall  be  drilled,  put  in  uniforms,  or  prepared 

130  Fed.  Cases,  No.  18,267. 

^United  States  v.  O' Sullivan,  27  Fed.  Cases,  No.  15,975. 

^United  States  v.  Murphy,  84  Fed.  Rep.,  609. 

*53  Fed.  Rep.,  536. 

6In  contrast  with  this  decision  there  is  an  opinion  rendered  in  1894  by  Attor- 
ney General  Olney.  In  a  letter  replying  to  a  request  from  the  Spanish  min- 
ister for  the  prosecution  of  Ochoa,  who  was  charged  with  having  organized 
a  gang  of  bandits  in  the  United  States  to  commit  depredations  against  Mexico, 
the  acting  Secretary  of  State  of  the  United  States  quoted  an  opinion  of  the 
Attorney  General  to  the  effect  that  "this  law  [the  Neutrality  Act]  clearly  is 
directed  against  the  invasion  of  foreign  territory  by  organized  military  bodies 
for  the  purpose  of  conducting  military  operations  against  the  foreign  govern- 
ment in  its  political  capacity,"  the  conclusion  being  that  the  law  was  not 
applicable  to  common  criminals  like  Ochoa  and  his  associates.  Later,  how- 
ever, when  the  Spanish  minister  had  pointed  out  that  persons  had,  on  previous 
occasions,  been  tried  and  sentenced  by  the  Federal  courts  for  leading  expe- 
ditions similar  to  that  of  Ochoa,  the  attorney  general  signified  his  readiness 
to  prosecute  such  persons  upon  being  furnished  with  tangible  evidence  of  a 
violation  of  the  neutrality  laws.  For.  Rel,  1894,  428;  Moore,  Int.  Law  Digest, 
VII,  933-934. 

^7Z  Fed.  Rep.,  159. 


INTERPRETATION   OF  THE   NEUTRALITY  LAWS  85 

for  efficient  service ;  nor  that  they  shall  have  been  organized  as  or  ac- 
cording to  the  tactics  or  rules  which  relate  to  what  is  known  as  in- 
fantry, artillery  or  cavalry;  it  is  sufficient  that  they  shall  have  com- 
bined and  organized  here  to  go  there  and  make  war  on  the  foreign 
government,  and  have  provided  themselves  with  the  means  of  doing 
so."i 

It  is  an  essential  element  of  this  organization  that  there  shall  be  a  Common  hostile 
common  intent  on  the  part  of  all  the  members.  This  intent  must,  of  '"^ent  necessary, 
course,  be  a  hostile  one,  as  is  indicated  by  the. words  of  the  statute 
qualifying  the  object  of  the  expedition  as  one  "to  be  carried  on  from 
thence  [the  United  States]  against  the  territory  or  dominions  of  any 
foreign  prince  or  state."  In  the  case  of  United  States  v.  O'Sullivan,^ 
it  was  held  that  before  the  jury  can  convict  under  Sec.  5286  it  must 
have  been  shown  "that  the  design,  the  end,  the  aim,  and  the  purpose 
of  the  expedition,  or  enterprise,  was  some  military  service,  some  at- 
tack, or  invasion  of  another  people  or  country,  state,  or  colony,  as  a 
military  force." 

With  regard  to  the  second  point,  that  the  body  of  men  thus  organ-   How   far  expe- 

ized  must  be  to  some  extent  armed,  recent  decisions  are  somewhat  ^'t'°"  "^"^t  be 

n-     •  T  armed, 

conflictmg.  It  would  seem  that  without  arms  and  ammunition  no  ex- 
pedition, however  well  organized  and  with  whatever  hostile  purpose, 
could  properly  be  said  to  be  military  in  character;  and  as  in  all  of  the 
early  cases  the  expeditions  were  in  fact  armed,  the  question  whether 
it  was  necessary  that  they  should  be  armed  was  not  presented  to  the 
courts.  But  more  recently,  in  the  case  of  United  States  v.  Wihorg,^ 
the  court  ventured  the  assertion  that  "whether  such  provision  [of  the 
means  of  carrying  on  war],  as  by  arming,  etc.,  is  necessary  need  not 
be  decided  in  this  case.  I  will  say,  however,  to  counsel  that  were  that 
question  required  to  be  decided  I  should  hold  that  it  is  not  necessary." 
As  against  this  dictum,  there  is  the  case  of  United  States  v.  Hart,'*'  in 
which  the  court  held  that  one  of  the  essential  elements  of  a  military 
body  was  "arms ;  such  arms  as  are  appropriate  to  the  enterprise ;  such 
as  will  enable  the  body  to  do  the  military  work  contemplated."  But 
in  a  case  arising  out  of  an  indictment  of  the  same  person  the  follow- 
ing year,-'  the  court  held  that  "it  is  not  necessary  that  the  arms  shall 
be  carried  upon  their  persons  here,  or  on  their  way;  it  is  sufficient 
that  arms  have  been  provided  for  their  use  when  occasion  requires." 

^See  also  United  States  v.  Hughes,  75  Fed.  Rep.,  267. 
227  Fed.  Cases,  No.  15,975. 
873  Fed.  Rep.,  159. 
<74  Fed.  Rep.,  724. 
678  Fed.  Rep.,  868. 


86 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


What  number  of 
men  necessary. 


What  organiza- 
tion necessary. 


It  will  be  seen  that  in  determining  what  conditions  are  required  to 
constitute  a  body  of  men  a  "military  expedition,"  the  courts  have  been 
embarrassed  by  the  necessity  of  not  infringing  upon  the  acknowledged 
right  of  citizens  to  leave  the  United  States  to  enlist  in  foreign  armies 
and  to  transport  arms  and  ammunition  in  the  ordinary  course  of 
commerce.  The  line  has  been  in  many  cases  difficult  to  draw.  In 
the  case  of  United  States  v.  Hart,^  the  court  said :  "As  this  is 
lawful  for  one  man  [to  leave  the  United  States  to  enlist  abroad] ,  so 
it  is  lawful  for  ten  men  or  for  twenty  or  a  hundred  men.  It  is  a 
necessary  incident  to  this  lawful  right,  that  men  may  go  abroad  for 
this  purpose  in  any  way  they  see  fit;  either  as  passengers  by  a  regu- 
lar line  steamer,  or  by  chartering  a  steamer,  or  in  any  other  manner 
they  choose,  either  separately  or  associated ;  so  long  as  they  do  not  go 
as  a  military  expedition,  nor  set  on  foot  a  military  enterprise,  which 
Sec.  5286  prohibits."  And  with  respect  to  the  transportation  of  arms 
and  ammunition,  the  court  held:  "If,  however,  the  expedition  or  en- 
terprise was  designed  only  to  transport  munitions  of  war  as  merchan- 
dise to  Cuba,  though  for  the  use  of  the  insurgent  army,  and  at  the 
same  time  to  transport  a  body  of  men  as  individuals  to  Cuba,  who 
wished  to  enlist  there,  and  that  was  all,  then  it  was  not  a  military  ex- 
pedition or  enterprise  under  this  statute;  it  would  not  be  so  unless  the 
men  had  first  combined  or  agreed  to  act  together  as  a  military  force, 
or  contemplated  the  exercise  of  military  force  in  order  to  reach  the 
insurgent  army."^ 

The  statute  provides  that  the  military  expedition  must  be  one  "to 
be  carried  on  from  thence  [the  United  States]  against  the  territory 
or  dominions  of  a  foreign  prince,  state,  .  .  ."  These  words  would 
seem  to  require  that  the  organization  of  the  expedition  must  be  more 
or  less  complete  before  the  expedition  leaves  the  United  States ;  but 
here  again  the  courts  have  not  applied  the  rule  of  strict  interpreta- 
tion.    In  the  case  of  United  States  v.  Hart,^  the  court  held:   "I  only 

17-^  Fed.  Rep.,  724. 

Hn  an  opinion  rendered  in  1895  with  reference  to  shipments  of  arms  into 
Cuba,  Attorney  General  Harmon  pointed  out  how  an  apparently  commercial 
transaction  might  take  on  a  hostile  character.  "If,  however,"  he  said,  "the  per- 
sons supplying  or  carrying  arms  and  munitions  from  a  place  in  the  United  States 
are  in  any  wise  parties  to  a  design  that  force  shall  be  employed  against  the 
Spanish  authorities,  or  that,  either  in  the  United  States  or  elsewhere,  before 
final  delivery  of  such  arms  and  munitions,  men  with  hostile  purposes  toward 
the  Spanish  Government  shall  also  be  taken  on  board  and  transported  in 
furtherance  of  such  purposes,  the  enterprise  is  not  commercial,  but  military, 
and  is  in  violation  of  international  law  and  of  our  own  statutes."  21  Op. 
Atty.  Gen.,  267. 

374  Fed.  Rep.,  724. 


INTERPRETATION   OF  THE   NEUTRALITY  LAWS  87 

repeat  that  while  it  is  not  necessary  in  my  judgment  that  all  the  ele- 
ments of  a  military  expedition — soldiers,  officers,  a  military  organi- 
zation, arms  and  equipments — should  exist  or  be  supplied  at  the  time 
when  the  vessel  sails,  it  is  necessary  that  there  should  be  a  combina- 
tion for  those  purposes,  that  these  should  have  been  within  the  un- 
derstanding and  intent  of  the  parties  and  that  some  of  these  things 
should  be  consummated  here.  The  most  essential  thing  would  seem 
to  be  a  combination  for  some  kind  of  military  organization,  some  en- 
rolment, some  enlistment,  or  some  agreement  which  bound  the  men 
to  act  together  as  a  body  for  military  service."  In  a  later  case.  United 
States  V.  Murphy^  the  court  went  so  far  as  to  say:  "Nor  is  it  neces- 
sary that  all  of  the  persons  composing  the  military  enterprise  should 
be  brought  in  personal  contact  with  each  other  within  the  limits  of 
the  United  States ;  nor  that  they  should  all  leave  those  limits  at  the 
same  point.  It  is  sufficient  that  by  previous  arrangement  or  agree- 
ment, whether  by  conversation,  correspondence  or  otherwise,  they 
become  combined  and  organized  for  the  purposes  mentioned,  and 
that  by  concerted  action,  though  proceeding  from  different  portions 
of  this  country,  they  meet  at  a  designated  point  either  on  the  high 
seas  or  within  the  limits  of  the  United  States."  The  case  of  Wihorg  IViborg  v. 
V.  United  States-  may  be  cited  as  a  typical  example  showing  the  evi-  ^"*'^^  States. 
dence  which  a  court  would  consider  conclusive  of  the  existence  of  a 
military  expedition.  The  plaintiff  in  error  was  indicted  for  having 
been  engaged,  as  captain  of  a  steamer,  in  a  military  expedition  against 
the  island  of  Cuba,  then  belonging  to  Spain.  The  court  summed  up 
the  facts  of  the  case  as  follows :  "This  body  of  men  went  on  board  a 
tug  loaded  with  arms ;  were  taken  by  it  thirty  or  forty  miles  and  out 
to  sea;  met  a  steamer  outside  the  three-mile  limit  by  prior  arrange- 
ment; boarded  her  with  the  arms,  opened  the  boxes  and  distributed 
the  arms  among  themselves;  drilled  to  some  extent;  were  apparent- 
ly officered;  and  then,  as  preconcerted,  disembarked  to  effect  an 
armed  landing  on  the  coast  of  Cuba.  The  men  and  the  arms  and 
ammunition  came  together;  the  arms  and  ammunition  were  under  the 
control  of  the  men ;  the  elements  of  the  expedition  were  not  only  'ca- 
pable of  proximate  combination  into  an  organized  whole,'  but  were 
combined  or  in  process  of  combination;  there  was  concert  of  action; 
they  had  their  own  pilot  to  the  common  destination;  they  landed 
themselves  and  their  munitions  of  war  together  by  their  own  efforts." 

184  Fed.  Rep.,  609. 
2163  U.  S.,  632. 


88  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Enforcement  of  Foregoing  Principles. 
Sees  7-8  of  Act  Sec.   5287.     [The  district  courts   shall   take  cognizance  of  all 

of  April  20,  1818.  complaints,  by  whomsoever  instituted,  in  cases  of  captures  made 

within  the  waters  of  the  United  States,  or  within  a  marine  league 
of  the  coasts  or  shores  thereof.]  In  every  case  in  which  a  vessel 
is  fitted  out  and  armed,  or  attempted  to  be  fitted  out  and  armed, 
or  in  which  the  force  of  any  vessel  of  war,  cruiser  or  other  armed 
vessel  is  increased  or  augmented,  or  in  which  any  military  expe- 
dition or  enterprise  is  begun  or  set  on  foot,  contrary  to  the  provi- 
sions and  prohibitions  of  this  Title ;  and  in  every  case  of  the  cap- 
ture of  a  vessel  within  the  jurisdiction  or  protection  of  the 
United  States  as  before  defined;  and  in  every  case  in  which  any 
process  issuing  out  of  any  court  of  the  United  States  is  disobeyed 
or  resisted  by  any  person  having  the  custody  of  any  vessel  of  war, 
cruiser,  or  other  armed  vessel  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  or  of  any  subjects  or  citizens 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  peo- 
ple, it  shall  be  lawful  for  the  President,  or  such  other  person  as 
he  shall  have  empowered  for  that  purpose,  to  employ  such  part 
of  the  land  or  naval  forces  of  the  United  States,  or  of  the  mi- 
litia thereof,  for  the  purpose  of  taking  possession  of  and  detain- 
ing any  such  vessel,  with  her  prizes,  if  any,  in  order  to  the  execu- 
tion of  the  prohibitions  and  penalties  of  this  Title,  and  to  the  re- 
storing of  such  prizes  in  the  cases  in  which  restoration  shall  be 
adjudged ;  and  also  for  the  purpose  of  preventing  the  carrying 
on  of  any  such  expedition  or  enterprise  from  the  territories  or 
jurisdiction  of  the  United  States  against  the  territories  or  do- 
minions of  any  foreign  prince  or  state,  or  of  any  colony,  dis- 
trict, or  people  with  whom  the  United  States  are  at  peace. 

Grounds  of  The  first  sentence  of  this  section  figured  as  Sec.  6  of  the  original 

jurisdiction.  Act  of  1794  and  as  Sec.  7  of  the  Act  of  1818.    It  refers  merely  to  a 

question  of  jurisdiction,  and  its  place  in  the  neutrality  code  may  be 
explained  as  the  result  of  the  adoption  by  Congress  of  the  recommen- 
dation made  by  Washington  in  his  annual  address  on  December  3, 
1793,  in  which  he  said  that,  owing  to  disputes  as  to  the  power  of  the 
^  courts  to  effect  the  reparation  of  certain  captures,  "it  would  seem 
proper  to  regulate  their  jurisdiction  in  these  points."  The  captures 
referred  to  are  not  the  prizes  which  might  be  taken  by  American 
ships  in  the  event  of  a  war,  but  are  the  prizes  taken  by  one  bellig- 
erent from  the  other  where  the  title  is  not  valid  because  of  the  ille- 
gality of  the  capture  within  the  territorial  waters  of  the  United 
States.  In  the  case  of  the  Alerta/  decided  in  1815,  the  court  clearly 
explained  the  character  of  the  jurisdiction  assumed  by  the  United 

19  Cranch,  359. 


INTERPRETATION  OF  THE  NEUTRALITY  LAWS  89 

States  over  prizes  brought  into  its  ports  by  foreign  vessels  of  war. 

"The  general  rule  is  undeniable,  that  the  trial  of  captures  made  on 

the   high    seas,   jure   belli,   by   a   duly   commissioned   vessel    of    war, 

whether  from  an  enemy  or  a  neutral,  belongs  exclusively  to  the  courts 

of  that  nation  to  which  the  captor  belongs.     To  this  rule  there  are 

exceptions  which  are  as  firmly  established  as  the  rule  itself.     If  the 

capture  be  made  within  the  territorial  limits  of  a  neutral  country  into 

which  the  prize  is  brought,  or  by  a  privateer  which  had  been  illegally 

equipped  in  such  neutral  country,  the  prize  courts  of  such  neutral 

country  not  only  possess  the  power,  but  it  is  their  duty  to  restore  the 

property  so  illegally  captured  to  the  owner.     This  is  necessary  to  the 

vindication  of  their  own  neutrality." 

It  will  be  observed  that  the  justification  offered  by  the  court  for  the   Extension  of 

restoration  of  prizes  captured  by  a  belligerent  within  the  territorial  jurisdiction  over 

....  other  prizes, 

waters  of  the  United  States  was  likewise  extended  to  cover  the  case 

of  prizes  captured,  not  within  the  jurisdiction  of  the  United  States, 
but  by  privateers  which  had  been  illegally  fitted  out  in  the  ports  of 
the  United  States.  In  fact,  immediately  upon  the  passage  of  the  Act 
of  1794  and  without  any  special  grant  of  jurisdiction  from  Congress, 
the  District  Courts  assumed  jurisdiction  over  prizes  captured  on  the 
high  seas  by  privateers  which  had  either  been  fitted  out  and  armed 
in  the  United  States  in  violation  of  Sec.  5283,  or  which  had  increased 
their  force  within  the  United  States  in  violation  of  Sec.  5285.^  Even 
before  the  passage  of  the  Act  of  1794,  in  the  case  of  Glass  v.  The 
Betsey^  it  was  argued  by  counsel  for  the  defendants  that  the  District 
Courts  had  no  jurisdiction  in  cases  of  captures  made  on  the  high  seas 
by  foreign  privateers ;  that  if  the  property  of  an  American  citizen 
was  involved,  "his  application  ought  to  be  made  to  his  government; 
the  injury  he  complains  of,  being  of  national  not  of  judicial,  inquiry." 
But  the  court  held  that  jurisdiction  in  such  cases  properly  belonged  to 
the  district  courts  which  were  competent  to  inquire  and  to  decide 
whether  restitution  could  be  made  "consistently  with  the  laws  of  na- 
tions and  the  treaties  and  laws  of  the  United  States."  Jurisdiction 
in  such  cases  is  entirely  distinct  from  an  inquiry  into  the  validity  of 
the  capture,  jure  belli,  on  the  high  seas  of  a  neutral  ship  by  a  duly 
commissioned  vessel,  whether  privateer  or  public  vessel  of  war,  in 
the  service  of  a  foreign  state.    In  the  case  of  the  Invincible,^  the  court 

iSee  The  Nancy,  4  Fed.  Cases,  No.  1,898;  The  Betty  Carthcart,  17  Fed.  Cases, 
No.  9.742;  Talbot  v.  Jansen,  3  Dall.,  133. 
23  Dall.,  6. 
31  Wheat.,  238. 


90 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Jurisdiction    taken 
merely   to    vindi- 
cate sovereignty. 


explained  the  basis  of  the  jurisdiction  of  the  District  Courts  in  the 
following  terms :  "Every  violent  dispossession  of  property  on  the 
ocean  is,  prima  facie,  a  maritime  tort;  as  such,  it  belongs  to  the  ad- 
miralty jurisdiction.  But  sitting  and  judging,  as  such  courts  do,  by 
the  law  of  nations,  the  moment  it  is  ascertained  to  be  a  seizure  by  a 
commissioned  cruiser,  made  in  the  legitimate  exercise  of  the  rights  of 
war,  their  progress  is  arrested ;  for  this  circumstance  is,  in  those  courts, 
a  sufficient  evidence  of  right.  That  the  mere  fact  of  seizure  as  prize 
does  not,  of  itself,  oust  the  neutral  admiralty  court  of  its  jurisdic- 
tion, is  evident  from  this  fact  that  there  are  acknowledged  cases  in 
which  the  courts  of  a  neutral  may  interfere  to  devest  possessions,  to 
wit,  those  in  which  her  own  right  to  stand  neutral  is  invaded." 

In  the  case  of  La  Amistad  de  Rues,^  the  court  passed  upon  the 
question  whether,  if  it  were  established  that  there  had  been  an  ille- 
gal augmentation  of  the  force  of  the  capturing  vessel,  a  decree  con- 
demning the  captain  of  the  privateer  to  pay  damages  to  the  owner  of 
the  vessel  for  the  loss  occasioned  by  the  capture  had  been  rightfully 
made  by  the  lower  court.  The  court  said:  "We  entirely  disclaim  any 
right  to  inflict  such  damages;  and  consider  it  no  part  of  the  duty  of  a 
neutral  nation  to  interpose,  upon  the  mere  footing  of  the  law  of  na- 
tions, to  settle  all  the  rights  and  wrongs  which  may  grow  out  of  a 
capture  between  belligerents."  But  if  the  property  has  been  cap- 
tured within  the  jurisdiction  of  the  neutral,  the  neutral  "may,  in- 
deed, inflict  pecuniary,  or  other  penalties,  on  the  parties  for  any  such 
violation;  but  it  then  does  it  professedly  in  vindication  of  its  own 
rights,  and  not  by  way  of  compensation  to  the  captured.  When  called 
upon  by  either  of  the  belligerents  to  act  in  such  cases,  all  that  justice 
seems  to  require  is,  that  the  neutral  nation  should  fairly  execute  its 
own  laws,  and  give  no  asylum  to  the  property  unjustly  captured.  It 
is  bound,  therefore,  to  restore  the  property  if  found  within  its  own 
ports;  but  beyond  this  it  is  not  obliged  to  interpose  between  the  bel- 
ligerents." In  other  words,  where  vessels  have  been  fitted  out  and 
armed,  or  have  increased  their  force,  in  violation  of  the  neutrality 
of  the  United  States,  the  courts  of  the  United  States  will  intervene 
to  effect  a  restitution  of  prizes  captured  by  such  vessels,  not  because 
the  capture  is  illegal  as  between  the  captor  and  the  former  owner,  but 
because  the  neutral  state  has  the  right  to  vindicate  its  own  sover- 
eignty by  divesting  possession  of  property  acquired  as  the  result  of 
a  violation  of  its  sovereignty.     In  this  connection  the  captures  made 


IS  Wheat..  385. 


INTERPRETATION   OF   THE   NEUTRALITY  LAWS  91 

by  a  duly  commissioned  privateer  in  the  service  of  a  belligerent  enjoy 
the  same  immunity  from  the  jurisdiction  of  neutral  states  as  do  those 
of  the  public  vessels  of  the  belligerent;  and  it  is  immaterial  in  whom 
the  property  of  the  offending  privateer  is  vested.^ 

The  second  sentence,  which  completes  the  section,  confers  upon  President  may 
the  President  the  power  to  employ  the  land  and  naval  forces  of  the  "ivn3:ers 
United  States  for  two  purposes,  either  to  take  possession  of  or  detain 
a  vessel  which  has  violated  Sees.  5283  and  5285,  in  order  to  enforce 
the  penalties  of  the  act  and  to  restore  any  prizes  which  such  vessel 
may  have  taken,  or  to  prevent  the  carrying  on  of  a  military  expedi- 
tion in  violation  of  Sec.  5286.  In  the  case  of  Gelston  v.  Hoyt~  an 
opinion  was  rendered  by  Justice  Story  setting  forth  the  circumstances 
which  will  justify  the  seizure  of  a  vessel  by  subordinate  officers  of 
the  chief  executive.  In  that  case  certain  customs  officers  of  the  port 
of  New  York,  acting  upon  the  express  authorization  of  the  President, 
seized  a  ship  for  having  been  fitted  out  and  armed  in  violation  of 
Sec.  5283.  When  an  action  of  trespass  was  brought  by  the  owner 
of  the  ship  against  them,  the  officers  entered  the  plea,  among  others, 
that  they  had  taken  possession  of  the  ship  by  virtue  of  instructions  of 
the  President.  To  this  the  court  replied  as  follows:  "The  argument 
is,  that  as  the  President  had  authority  by  the  act  to  employ  the  naval 
and  military  forces  of  the  United  States  for  this  purpose,  a  fortiori, 
he  might  do  it  by  the  employment  of  civil  force.  But  upon  the  most 
deliberate  consideration,  we  are  of  a  different  opinion.  The  power 
thus  entrusted  to  the  President  is  of  a  very  high  and  delicate  nature, 
and  manifestly  intended  to  be  exercised  only  when,  by  the  ordinary 
process  or  exercise  of  civil  authority,  the  purposes  of  the  law  cannot 
be  effectuated.  It  is  to  be  exerted  on  extraordinary  occasions,  and 
subject  to  that  high  responsibility  which  all  executive  acts  necessarily 
involve  .  .  .  Surely  it  never  could  have  been  the  intention  of 
Congress  that  such  a  power  should  be  allowed  as  a  shield  to  the  seiz- 
ing officer,  in  cases  where  that  seizure  might  be  made  by  the  ordinary 
civil  means.  One  of  the  cases  put  in  the  section  is,  where  any  pro- 
cess of  the  courts  of  the  United  States  is  disobeyed  and  resisted ;  and 
this  case  abundantly  shows  that  the  authority  of  the  President  was 
not  intended  to  be  called  into  exercise,  unless  where  military  and 
naval  force  were  necessary  to  insure  the  execution  of  the  laws."  It 
would  seem  to  follow  from  this  holding  of  the  court  that  executive 
action  to  prevent  violations  of  the  act  must,  in  all  cases,  be  subsequent 

n  Wheat.,  238. 
23  Wheat.,  246. 


92  NEUTRALITY   LAWS  OF  THE  UNITED   STATES 

to  judicial  procedure  against  the  offenders.  In  other  words,  a  war- 
rant must  first  issue  from  the  courts  for  the  arrest  of  offenders 
against  the  act,  or  for  the  seizure  of  the  vessel  alleged  to  be  forfeited, 
and  only  when  such  warrant  shall  have  been  disobeyed  or  resisted, 
shall  it  be  lawful  for  the  President  to  employ  the  military  and  naval 
forces  of  the  United  States  to  ensure  the  execution  of  the  laws.  This 
same  position  was  taken  by  Attorney  General  Nelson  in  an  opinion 
rendered  in  1844,  in  which  he  says  that  ''the  authority  of  the  Presi- 
dent to  employ  the  naval  forces  of  the  United  States,  conferred  by 
the  8th  section  of  the  act,  will  be  dependent  upon  the  resistance  to 
the  execution  of  the  process  of  the  courts  of  the  United  States  on 
board  of  the  steamers,  and  to  the  refusal  of  their  commanders,  if 
their  force  has  been  augmented  or  increased,  to  discharge  therefrom 
such  augmentation  or  increase."^ 
Courts  may  take  There  is  apparently  no  power  conferred  upon  the  President  to  take 
preventive  meas-  g^gpg  ^q  prevent  an  intended  violation  of  the  law  where  there  has 
been  no  overt  act.  It  is,  however,  within  the  competence  of  the  fed- 
eral courts  to  take  action  in  such  cases.  Sec.  727  of  the  Revised 
Statutes  confers  upon  the  federal  courts  the  "authority  to  hold  to 
security  of  the  peace  and  for  good  behavior,  in  cases  arising  under 
the  Constitution  and  laws  of  the  United  States."  In  1854,  when  funds 
were  being  collected  in  the  United  States  in  aid  of  Cuban  insur- 
gents by  the  issuance  of  bonds  payable  in  the  name  and  upon  the 
pledge  of  the  insurgent  government,  if  successful,  Quitman  and  others 
concerned  in  the  proceedings  refused  to  answer  questions  put  to  them 
by  a  grand  jury  charged  with  inquiring  into  the  existence  of  an  or- 
ganization in  violation  of  the  neutrality  laws  of  the  United  States. 
On  the  ground  of  the  refusal  of  the  parties  to  testify,  the  court  held 
that  bonds  should  be  required  of  them  to  observe  the  neutrality  laws 
of  the  United  States.  In  the  course  of  the  opinion  rendered,  the 
court  said :  "The  president  of  the  United  States  has  admonished  the 
country  that  there  is  danger  of  a  violation  of  these  important  stat- 
utes, and  the  grand  jury,  after  a  patient  investigation,  certify  that  this 

H  Op.  Atty.  Gen.,  336.  In  a  more  recent  opinion,  Attorney  General  Harmon 
held  that  the  President,  being  a  coordinate  authority  with  the  judiciary,  would  not 
be  precluded  from  employing  the  military  and  naval  forces  of  the  United  States,  in 
a  proper  case,  by  the  action  of  the  judiciary.  "Occasions  may  be  imagined," 
he  said,  "when  the  summary  process  of  martial  law  might  perhaps  be  resorted 
to  against  the  persons  composing  such  a  body.  But  in  all  such  cases  as  those 
which  have  come  to  the  notice  of  the  Government  these  conditions  do  not  exist, 
and  the  judicial  authority  is  the  only  one  which  can  be  properly  or  efficiently 
invoked."  21  Op.  Atty.  Gen.,  273. 


INTERPRETATION   OF  THE  NEUTRALITY  LAWS  93 

admonition  has  a  legitimate  foundation.  Public  rumor  has  attached 
suspicion  to  the  name  of  the  defendant,  according  to  the  certificate. 
I  will  say  with  the  Chief  Justice  of  England,  already  quoted,  'We 
should  be  poor  guardians  of  the  public  peace,  if  we  could  not  inter- 
fere until  an  actual  outrage  had  taken  place,  and,  perhaps,  fatal  con- 
sequences ensued.'  "^ 

Compelling  Foreign  Vessels  to  Depart. 
Sec.  5288.     It  shall  be  lawful  for  the  President,  or  such  person    Sec.  9  of  Act  of 
as  he  shall  empower  for  that  purpose,  to  employ  such  part  of   April  20,  1818. 
the  land  or  naval  forces  of  the  United  States,  or  of  the  militia 
thereof,  as  shall  be  necessary  to  compel  any  foreign  vessel  to  de- 
part the  United  States  in  all  cases  in  which,  by  the  laws  of  na- 
tions or  the  treaties  of  the  United  States,  she  ought  not  to  re- 
main within  the  United  States. 

This  section  relates  to  the  duty  of  the  President  to  see  to  the  ful-  Statute  directed 
filment  of  the  neutral  duties  of  the  United  States  in  cases  requiring  ents"themlelves' 
state  action  with  respect  not  to  citizens  of  the  state  but  to  the  belliger- 
ent powers  directly.  Apart  from  the  obligation  to  prevent  individual 
citizens  or  persons  within  its  jurisdiction  from  cooperating  with,  or 
otherwise  giving  help  to,  either  of  the  belligerent  powers,  a  neutral 
state  must  be  ready  to  take  direct  action  against  the  belligerent  powers 
themselves,  when  necessary  to  prevent  them  from  making  any  use  of 
its  territory  for  the  actual  commission  of  hostile  operations  or  for  the 
preparation  of  the  means  of  future  combat.  But  inasmuch  as  the 
public  vessels  of  a  belligerent  are  not  subject  to  the  jurisdiction  of 
the  neutral  state,  the  only  direct  action  which  the  neutral  can  take 
against  them  is  to  refuse  to  grant  them  the  asylum  of  its  ports.  In 
the  United  States  it  will  devolve  upon  the  President,  as  chief  executive, 
to  see  that  the  United  States  shall  not  fail  in  its  obligations  on  any 
point,  which,  as  in  this  instance,  involves  the  action  of  the  administra- 
tive organs  of  the  state.  For  the  due  performance  of  this  duty  the 
President  may  at  times  require  the  power  to  call  the  military  and 
naval  forces  of  the  United  States  to  his  aid. 

In  the  present  instance  the  President  is  empowered  to  employ  the  Obligation  under^^ 
military  and  naval  forces  of  the  United  States  to  compel  the  depar- 
ture of  foreign  vessels  from  the  United  States,  both  in  the  case  where 
the  United  States  is  under  an  international  obligation  to  refuse  asylum 
to  them,  and  in  the  case  where  the  United  States  is  under  a  similar  obli- 
gation by  treaty.    With  respect  to  the  obligations  of  the  United  States 

^United  States  v.  Quitman,  27  Fed.  Cases,  No.  16,111. 


94 


NEUTRALITY   LAWS   OF  THE  UNITED  STATES 


Executive  action 
auxiliary  to  judi- 
cial  procedure. 


under  the  "laws  of  nations,"  it  may  be  said  that  at  the  period  of  the 
passage  of  the  Act  of  1794  the  President  was  under  obUgation  to  re- 
fuse asylum  to  and  compel  the  departure  of  foreign  vessels  in  the  fol- 
lowing cases :  ( 1 )  where  vessels  had  been  originally  armed  and  fitted 
out  in  any  port  of  the  United  States  by  either  of  the  parties  at  war; 
(2)  where  vessels  in  the  service  of  either  of  the  parties  at  war  had 
received  in  the  ports  of  the  United  States  equipments  of  a  nature 
solely  adapted  to  war;  (3)  where  privateers,  holding  commissions 
from  either  belligerent,  had  been  fitted  out  or  armed  in  the  ports  of 
the  United  States  ;^  (4)  where  vessels  in  the  service  of  or  holding 
commissions  from  either  belligerent  had  violated  the  sovereignty  of 
the  United  States  by  committing  hostilities  within  the  territorial  waters 
of  the  United  States.^  The  obligation  of  the  President  to  compel  the 
departure  of  foreign  vessels  in  the  above  cases  rests  upon  the  prmciple 
that  any  deliberate  failure  on  the  part  of  a  neutral  state  to  enforce 
respect  for  its  sovereignty  as  against  both  belligerents  impartially 
would  be  equivalent  to  giving  assistance  to  the  favored  belligerent, 
and  consequently  would  be  contrary  to  strict  neutrality. 

It  must  be  observed  that  Sec.  5288  evidently  contemplated  action  on 
the  part  of  the  President  only  in  cases  in  which  the  District  Courts 
would  be  unable  to  proceed  against  the  vessel  in  question  because  of 
the  fact  that  it  was  in  the  public  service  of  one  of  the  parties  at  war 
and  therefore  not  subject  to  the  jurisdiction  of  the  courts,  or  in  cases 

^The  acts  mentioned  under  1,  2,  and  3  are  declared  unlawful  by  Hamilton 
in  his  Instructions  to  the  Collectors  of  Customs,  issued  on  August  4,  1793,  in 
which  he  said  that  the  rules  laid  down  "had  been  adopted  by  the  President  as 
deductions  from  the  laws  of  neutrality,  established  and  received  among  nations." 
'See  above,  pp.  22-23.    App.,  p.  170. 

^Vattel,  writing  in  1758,  illustrates  the  principle  that  a  neutral  state  must 
resent  the  commission  of  hostilities  within  its  territory  by  a  belligerent,  by 
citing  the  action  of  the  Governor  of  Bergen  in  Norway,  who,  in  1666,  fired 
upon  the  English  fleet  when  it  pursued  and  attacked  the  Dutch  fleet  in  that 
port.    Le  Droit  des  Gens,  Liv.  Ill,  Chap.  VII,  §132. 

Azuni,  writing  in  1795,  cites  certain  rules  concerning  the  asylum  which  may 
be  given  to  belligerent  vessels  in  neutral  ports,  which  rules  he  says,  "have 
been  long  in  practice  in  the  most  frequented  ports  of  Europe."  These  rules 
require  not  only  that  belligerent  vessels  in  neutral  ports  shall  refrain  from  the 
commission  of  hostilities  and  from  increasing  their  armament  or  military 
stores,  but  that  they  shall  not  in  any  way  make  use  of  neutral  ports  as  a  point 
of  attack  against  the  enemy.  Principes  du  Droit  Maritime,  Tome  2,  Chap.  V, 
Art.  I. 

In  a  circular  of  April  16,  1795,  addressed  by  Mr.  Randolph,  Secretary  of 
State,  to  the  governors  of  the  several  states,  it  is  stated  that  "as  it  is  contrary 
to  the  law  of  nations  that  any  of  the  belligerent  Powers  should  commit  hostil- 
ity on  the  waters  which  are  subject  to  the  exclusive  jurisdiction  of  the  United 
States,  so  ought  not  the  ships  of  war,  belonging  to  any  belligerent  Power,  to 
take  a  station  in  those  waters  in  order  to  carry  on  hostile  expeditions  from 
thence."    Am.  State  Papers,  For.  Rel.,  I,  608. 


INTERPRETATIOX   OF   THE   NEUTRALITY   LAWS  95 

in  which  the  District  Courts,  for  lack  of  evidence  or  other  reasons, 
might  be  unable  to  issue  a  process  against  the  vessels  or  their  owners. 
Only  as  thus  interpreted  can  Sec.  5288  be  reconciled  with  Sec.  5287 
which,  as  it  has  been  shown,  contemplated  action  on  the  part  of  the 
President  merely  as  auxiliary  to  judicial  procedure  against  persons 
violating  the  law. 

The  rules  of  international  law  with  respect  to  the  asylum  which  Changes  in  the 
may  be  granted  by  neutral  states  to  belligerent  vessels  of  war  have  been  ^^^^  ^^  *°  asylum, 
greatly  modified  during  the  one  hundred  and  nineteen  years  since  the 
passage  of  the  original  Neutrality  Act.  They  first  received  greater 
precision  as  a  result  of  the  controversies  between  the  United  States 
and  Great  Britain  growing  out  of  the  Civil  War.  The  proclamation 
of  neutrality  issued  by  President  Grant  in  1870^  on  the  outbreak  of 
the  Franco-Prussian  war  states  the  law  as  understood  by  the  United 
States  at  that  time.  At  the  present  day  the  Convention  relating  to  the 
Rights  and  Duties  of  Neutral  Powers  in  Maritime  War,  adopted  by 
the  Second  Hague  Peace  Conference  in  1907,  embodies  the  rules  of 
international  law  on  that  subject.  It  will  be  more  convenient,  how- 
ever, to  discuss  in  a  later  chapter^  the  new  duties  devolving  upon  the 
President  as  a  consequence  of  this  convention. 

With  respect  to  the  obligation  of  the  United  States  under  "treaties,"  Obligation  un- 
it is  clear  that  Sec.  5288  was  framed  in  view  of  the  Treaty  of  Amity  '^^^  "treaties." 
and  Commerce  concluded  between  the  United  States  and  France  in 
1778.  Art.  XVII  of  the  treaty  provided  that  no  shelter  or  refuge 
should  be  given  in  the  ports  of  the  United  States  to  vessels  which  had 
made  prize  of  the  subjects,  people,  or  property  of  either  of  the  parties; 
Art.  XXII  provided  that  foreign  privateers,  holding  commissions  from 
any  prince  or  state  at  enmity  with  either  of  the  contracting  parties 
should  be  denied  any  privilege  in  the  ports  of  either  of  the  parties,  ex- 
cept the  concession  of  purchasing  such  provisions  as  should  be  neces- 
sary to  carry  them  to  the  next  port  of  the  state  from  which  they  had 
commissions.^  The  Treaty  of  1778  was  abrogated  by  an  act  of  Con- 
gress approved  July  7,  1798,  so  that  after  that  date  the  reference  in 
Sec.  5288  to  "treaties"  ceased  to  have  any  application. 

It  will  be  observed  that  Sec.  5288  leaves  it  to  the  discretion  of  the  Discretionary 
President  to  decide  when  a  proper  case  shall  have  arisen  calling  for  p°esldent. 

^Richardson's  Messages,  VII,  89. 

2See  below,  pp.  150-152. 

3The  operation  of  this  article  might  perhaps  have  been  limited  on  one  point 
by  Art.  XVIII  of  the  Treaty  of  1785  between  the  United  States  and  Prussia, 
and  by  Art.  XVII  of  the  Treaty  of  1782  between  the  United  States  and  the 
Netherlands. 


96  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

the  action  contemplated  by  the  statute.  Inasmuch  as  the  statute  is 
not  penal  in  character,  there  was  no  need  of  defining  more  exactly  the 
circumstances  under  which  foreign  vessels  were  to  be  refused  asylum. 
Moreover,  since  the  conduct  of  foreign  relations  is  intrusted  to  the 
executive  department  of  the  United  States  government,  it  was  proper 
that  in  questions  relating  to  the  obligation  of  treaties  and  to  the  inter- 
pretation of  the  rules  of  international  law  the  President  should  be  left 
free  to  decide  upon  the  proper  action  to  be  taken. 

Armed  Vessels  to  Give  Bond  on  Clearance. 
Sec.  10  of  Act  of  Sec.  5289.     The  owners  or  consignees  of  every  armed  vessel 

April  20,  1818.  sailing  out  of  the  ports  of  the  United  States,  belonging  wholly  or 

in  part  to  citizens  thereof,  shall,  before  clearing  out  the  same, 
give  bond  to  the  United  States,  with  sufficient  sureties,  in  double 
the  amount  of  the  value  of  the  vessel  and  cargo  on  board,  in- 
cluding her  armament,  conditioned  that  the  vessel  shall  not  be 
employed  by  such  owners  to  cruise  or  commit  hostilities  against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  with  whom  the  United  States 
are  at  peace. 

This  section,  as  was  pointed  out  in  Chapter  II,  first  appeared  as 
Sec.  2  of  the  Act  of  March  3,  1817,  and  was  reenacted  as  Sec.  10 
of  the  Act  of  April  20,  1818.  The  general  purpose  of  its  enactment 
has  been  explained  above^  as  being  a  response  to  the  demand  that  the 
laws  providing  for  the  punishment  of  offenses  already  committed  be 
supplemented  by  other  measures  of  a  preventive  character.  Owing 
to  the  fact  that  it  was  customary  at  the  period  of  the  passage  of  the 
Act  of  1817  for  vessels  engaged  in  trade  with  distant  foreign  ports  to 
carry  a  certain  amount  of  armament  for  self-protection  against  pi- 
rates, the  circumstance  of  a  vessel  leaving  port  armed  was  not  in 
itself  conclusive  evidence  that  the  vessel  was  to  be  used  in  the  service 
of  a  belligerent. 
Guarantee  relates  It  will  be  observed  that  one  of  the  conditions  of  requiring  bond  is 
to  acts  of  owners  ^^^^  ^j^g  vessel  must  be  owned  "wholly  or  in  part"  by  citizens  of  the 
United  States.  Foreign  owned  vessels  are  consequently  not  affected 
by  the  statute.  Moreover,  there  is  a  still  further  limitation  upon  the 
scope  of  the  statute  in  the  fact  that  the  bond  merely  guarantees  that 
the  vessel  will  not  be  employed  by  the  owners  themselves  to  commit 
hostilities  against  a  friendly  state.  Both  these  restrictions  clearly 
indicate,  apart  from  the  historical  evidence  to  the  same  effect,  that 
the  object  of  Sec.  5289  was  to  prevent  privateering  on  the  part  of 
citizens  of  the  United  States. 

^See  p.  36. 


INTERPRETATION   OF   THE   NEUTRALITY  LAWS  97 

It  is  evident  that  it  was  not  the  intention  of  this  section  that  an  Giving  bond  does 
armed  vessel  might,  by  giving  bond,  be  thereby  entitled  to  clearance,  "fi^!"^'  ^° 
Such  an  interpretation  would  clearly  defeat  the  purpose  of  Sees.  5283 
and  5285.  It  would  make  it  possible  for  a  vessel,  which  had  been 
armed  with  intent  to  commit  hostilities  against  a  friendly  state,  to  be 
bonded  by  the  very  persons  who  were  engaged  in  fitting  it  out  for  an 
unlawful  purpose,  in  cases  where  the  actual  money  cost  of  the  expedi- 
tion might  be  of  little  consideration  to  the  persons  engaged  in  it.  In 
the  case  of  the  Mary  N.  Hogan,^  where  the  owner  offered  bond  for 
the  release  of  a  vessel  seized  for  forfeiture  under  Sec.  5283,  the  court 
said :  "It  is  clearly  not  the  intention  of  Sec.  5283,  in  imposing  a  for- 
feiture, to  accept  the  value  of  the  vessel  as  the  price  of  a  hostile  ex- 
pedition against  a  friendly  power,  which  might  entail  a  hundredfold 
greater  liabilities  on  the  part  of  the  government.  No  unnecessary  in- 
terpretation of  the  rules  should  be  adopted  which  would  permit  that 
result ;  and  yet  such  might  be  the  result,  and  even  the  expected  result, 
of  a  release  of  the  vessel  on  bond.  The  plain  intent  of  Sec.  5283  is 
effectually  to  prevent  any  such  expedition  altogether,  through  the 
seizure  and  forfeiture  of  the  vessel  herself."  This  decision  is  quoted 
with  approval  in  the  case  of  the  Three  Friends,"^  in  which  the  court 
explained  that  Sees.  938-941  of  the  Revised  Statutes,  providing  for  the 
release  upon  bond  of  vessels  seized  for  violation  of  the  revenue  laws, 
etc.,  did  not  apply  to  cases  of  seizure  for  forfeiture  under  any  law 
of  the  United  States,  which  cases  are  distinctly  excepted  from  the  pro- 
visions of  Sec.  941. 

Detention  by  Collectors  of  Customs. 
Sec.  5290.  The  several  collectors  of  the  customs  shall  detain    Sec.  11  of  Act  of 
any  vessel  manifestly  built  for  warlike  purposes,  and  about  to   ■'^P'"'^  ^^'  ^^^^• 
depart  the  United  States,  the  cargo  of  which  principally  consists 
of  arms  and  munitions  of  war,  when  the  number  of  men  shipped 
on  board,  or  other  circumstances,  render  it  probable  that  such 
vessel  is  intended  to  be  employed  by  the  owners  to  cruise  or  com- 
mit hostilities   upon  the  subjects,   citizens,   or  property   of   any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  people  with 
whom  the  United  States  are  at  peace  until  the  decision  of  the 
President  is  had  thereon,  or  until  the  owner  gives  such  bond  and 
security  as  is  required  of  the  owners  of  armed  vessels  by  the 
preceding  section. 

Like  the  preceding  section,  this  section  passed  from  the  temporary 
Act  of  1817  into  the  permanent  Act  of  1818.    It  supplements  Sec.  5289 

117  Fed.  Rep.,  813. 
2166  U.  S.,  1. 


98 


NEUTRALITY  LAWS  OF  THE  UNITED   STATES 


Comprehensive- 
ness of  terms. 


Conditions  requir- 
ed for  detention. 


by  conferring  a  discretionary  power  upon  the  collectors  of  customs 
enabling-  them  to  detain  vessels  in  cases  indicating  a  probable  inten- 
tion on  the  part  of  the  owner  of  the  vessel  to  commit  hostilities  against 
a  friendly  state.  It  will  be  noted  that  the  description  of  the  character 
of  the  vessel  which  may  be  detained  is  not  an  "armed  vessel"  as  in  Sec. 
5289,  but  one  "manifestly  built  for  warlike  purposes."  The  debates 
in  the  House  of  Representatives  preceding  the  adoption  of  the  Act 
of  1817  show  that  the  two  terms  were  not  meant  to  be  synonymous, 
and  that  the  intention  of  the  framers  of  the  Act  was  to  prevent  vessels 
from  leaving  port  which,  though  without  any  appearance  of  armament 
upon  their  decks,  might  have  such  complete  equipment  for  war  that  as 
soon  as  they  were  on  the  high  seas  they  could  be  converted  into  priva- 
teers.^ Accordingly,  unarmed  vessels  which  would  escape  the  require- 
ment of  giving  bond  under  the  terms  of  Sec.  5289  might,  under  the 
circumstances  defined,  be  subject  to  detention  under  Sec.  5290. 

Two  conditions  are  imposed  before  a  vessel  manifestly  built  for 
warlike  purposes  can  be  detained,  namely,  that  the  cargo  of  the  ves- 
sel shall  consist  principally  of  arms  and  munitions  of  war,  and  that 
the  number  of  men  shipped  on  board  or  other  circumstances  shall 
render  it  probable  that  the  vessel  is  to  be  used  for  an  unlawful  purpose. 
The  detention  of  the  vessel  must,  therefore,  be  justified  by  evidence 
of  the  probable  unlawful  intent, — a  point  which  the  law  leaves  it  to 
the  discretion  of  the  collectors  of  customs  to  determine.  In  the  case 
of  Hendricks  v.  Gonzalez,-  the  court  held  that  it  is  not  sufficient  to 
justify  a  collector  of  customs  in  refusing  clearance  to  a  vessel  under 
Sec.  5290  because  it  is  the  purpose  of  her  intended  voyage  to  trans- 
port arms  and  munitions  of  war  for  the  use  of  an  insurrectionary 
party  in  a  country  with  which  the  United  States  are  at  peace;  the 
transportation  of  arms,  etc.,  from  a  neutral  port  to  a  belligerent  coun- 
try not  being  a  violation  of  the  duties  of  a  neutral  state,  although  such 
contraband  merchandise  is  subject  to  the  penalty  of  a  confiscation  by 
the  other  belligerent.  When  the  circumstances  do  not  justify  deten- 
tion of  the  vessel,  the  owners  may  bring  suit  for  damages  against  the 
collector  of  customs,  even  though  the  latter  is  acting  under  specific 
instructions  from  the  Secretary  of  the  Treasury. 

The  detention  of  the  vessel  is  to  remain  in  force  until  the  decision 
of  the  President  is  had  thereon,  or  until  the  owner  gives  bond  and 
security  as  is  required  of  the  owners  of  armed  vessels  by  Sec.  5289. 
With  respect  to  the  last  clause  the  same  observation  holds  good  that 

^Annals  of  Congress,  14th  Cong.,  2d  Sess.,  723. 
267  Fed.  Rep.,  351. 


INTERPRETATION   OK   THE   NEUTRALITY  LAWS  99 

was  made  in  regard  to  Sec.  5289,  namely,  that  the  mere  giving  of  bond 
will  not  constitute  a  claim  for  release.  Once  the  probable  intent  with 
which  the  vessel  is  to  be  used  has  justified  its  seizure,  the  burden  of 
proof  may  properly  be  upon  the  owners  to  show  that  the  vessel  is 
not  to  be  used  for  an  unlawful  purpose. 

Construction  of  This  Title. 
Sec.  5291.  The  provisions  of  this  Title  shall  not  be  construed 
to  extend  to  any  subject  or  citizen  of  any  foreign  prince,  state, 
colony,  district,  or  people  who  is  transiently  within  the  United 
States,  and  [enlist]  [enlists]  or  enters  himself  on  board  of  any 
vessel  of  war,  letter  of  marque,  or  privateer,  which  at  the  time  of 
its  arrival  within  the  United  States  was  fitted  and  equipped  as 
such,  or  hires  or  retains  another  subject  or  citizen  of  the  same 
foreign  prince,  state,  colony,  district,  or  people,  who  is  transiently 
within  the  United  States,  to  enlist  or  enter  himself  to  serve  such 
foreign  prince,  state,  colony,  district,  or  people,  on  board  such 
vessel  of  war,  letter  of  marque,  or  privateer,  if  the  United  States 
shall  then  be  at  peace  with  such  foreign  prince,  state,  colony,  dis- 
trict, or  people.  Nor  shall  they  be  construed  to  prevent  the  prose- 
cution or  punishment  of  treason,  or  of  any  piracy  defined  by  the 
laws  of  the  United  States. 

This  section,  with  the  exception  of  the  last  sentence,  figured  in  Origin  of 
slightly  altered  terms  as  a  proviso  appended  to  Sec.  2  of  both  the  ^^'^"°"- 
original  Act  of  1794  and  the  Act  of  1818.  Although  its  position  as  a 
separate  section  in  the  Revised  Statutes  would  seem  to  indicate  that  it 
applies  to  the  preceding  sections  as  a  body,  it  is  actually  applicable 
only  to  Sec.  5282.  It  was  not  thought  by  the  framers  of  the  Acts  of 
1794  and  1818  that  the  neutral  obligations  of  the  United  States  ex- 
tended to  the  prevention  of  enlistments  in  the  service  of  a  foreign 
state,  when  the  persons  so  enlisting  owed  allegience  to  the  foreign 
state  as  its  subjects.  In  the  Instructions  to  the  Collectors  of  Customs, 
issued  by  Hamilton  on  August  4,  1793,^  it  is  distinctly  stated  that 
"vessels  of  either  of  the  parties,  not  armed,  or  armed  previous  to  their 
coming  into  the  ports  of  the  United  States,  which  shall  not  have  in- 
fringed any  of  the  foregoing  rules,  may  lawfully  engage  or  enlist 
therein  their  own  subjects  or  citizens."  The  reasons  for  believing 
that  this  exception  with  regard  to  the  illegality  of  foreign  enlistments 
in  the  United  States  is  no  longer  a  justifiable  one  will  be  explained  in 
a  later  chapter.^ 

The  last  sentence  of  Sec.  5291  figured  as  Sec.  9  of  the  Act  of  1794. 

iSee  App.,  p.  170. 
2See  below,  pp.  156-157. 


100  NEUTRALITY  LAWS  OF  THE  UNITED   STATES 

Its  original  enactment  was  evidently  due  to  a  desire  not  to  permit  per- 
sons to  escape  the  penalties  attached  to  treason  and  piracy  because 
they  might  at  the  same  time  be  prosecuted  for  violating  the  neutrality 
Reason  for  refer-   laws  of  the  United  States.    The  reference  to  "treason"  would  appear 
and  piracy  ^^  have  contemplated  the  possibility  of  American  citizens  accepting 

commissions  to  command  privateers  in  the  service  of  a  country  at 
war  with  the  United  States,  or  enlisting  on  board  such  privateers. 
The  rewards  attached  to  successful  privateering  were  so  considerable- 
that  it  was  not  improbable  that  the  adventurers  who  engaged  in  that 
practice  might  in  time  of  war  be  tempted  to  accept  commissions  from 
a  foreign  state  to  prey  upon  the  commerce  of  their  own  country. 
The  cases  of  "piracy"  contemplated  by  Sec.  5291  were  closely  associa- 
ted with  those  of  treason,  and  only  differed  from  the  latter  in  that  the 
acts  in  question  might  be  performed  at  a  time  when  there  was  no 
actual  war  in  progress  between  the  United  States  and  the  country  in. 
whose  service  such  citizens  of  the  United  States  might  be  serving.  In 
Sec.  9  of  the  Act  for  the  Punishment  of  Certain  Crimes  against  the 
United  States,  passed  on  April  30,  1790,  it  was  declared  that  "if  any 
citizen  shall  commit  any  piracy  or  robbery  aforesaid,  or  any  act  of 
hostility  against  the  United  States,  or  any  citizen  thereof,  upon  the 
high  sea,  under  colour  of  any  commission  from  any  foreign  prince, 
or  state,  or  on  pretence  of  authority  from  any  person,  such  ofifender 
shall,  notwithstanding  the  pretence  of  any  such  authority,  be  deemed, 
adjudged  and  taken  to  be  a  pirate,  felon,  and  robber,  and  on  being^ 
thereof  convicted  shall  suffer  death. "^  That  such  cases  of  piracy  did 
actually  occur  may  be  gathered  from  the  address  of  President  Adams 
to  Congress  on  May  16,  1797,  in  which  he  called  attention  to  the  fact 
that  "some  of  our  citizens  resident  abroad,  have  fitted  out  privateers, 
and  others  have  voluntarily  taken  the  command,  or  entered  on  board 
of  them,  and  committed  spoliations  on  the  commerce  of  the  United 
States. "2  Moreover,  the  United  States  had  agreed  by  the  Treaty  of 
Amity  and  Commerce  concluded  with  France  in  1778  that  if  any  of  its; 
citizens  should  take  from  any  foreign  prince  or  state  at  war  with 

^It  is  assumed  that  the  acts  contemplated  by  Sec.  9  must  be  committed  at 
a  time  when  there  is  no  formal  war  in  progress  between  the  United  States 
and  the  state  from  which  the  offender  holds  his  commission.  Otherwise,  the 
offense  specified  would  have  been  already  covered  by  Sec.  1  of  the  same  Act 
defining  treason  against  the  United  States.  It  was  a  common  practice  at  the 
period  of  the  passage  of  the  Act  of  1794  for  governments  to  issue,  in  time 
of  peace,  letters  of  marque  and  reprisal  authorizing  persons  to  make  captures 
of  the  private  vessels  of  another  state  as  a  means  of  redress  for  injuries^ 
received  from  that  state. 

^Am.  State  Papers,  For.  Rel.,  I,  40.     See  above,  p.  30. 


INTERPRETATION   OF  THE    NEUTRALITY   LAWS  101 

France  a  commission  or  letters  of  marque  for  arming  a  ship  to  act  as 
privateer  against  the  subjects  of  the  King  of  France  or  their  property, 
such  person  should  be  punished  as  a  pirate.  A  similar  agreement  was 
entered  into  by  the  Treaty  of  Oct.  8,  1782  with  the  Netherlands,  by 
the  Treaty  of  April  3,  1783  with  Sweden,  by  the  Treaty  of  September 
10,  1785  with  Prussia,  as  also  by  the  Treaty  of  November  19,  1794 
with  Great  Britian,  concluded  shortly  after  the  passage  of  the  neutral- 
ity act  of  that  year. 

In  addition  to  the  above  sections  of  the  Revised  Statutes,  there  is  Joint  resolution 
the  joint  resolution  passed  on  March  14,  1912,^  which  may  be  regarded  °^  March  14,  1912. 
as  an  amendment  to  the  act  of  April  20,  1818.    It  is  not  known,  how- 
ever, that  any  cases  have  as  yet  been  prosecuted  under  this  resolution. 

^See  above,  p.  58. 


CHAPTER  IV. 

THE  DEFICIENCIES  OF  THE  NEUTRALITY  LAWS 
OF  THE   UNITED   STATES. 

Character  of  While   the  historical   sketch  of  the  neutrality   acts  of  the  United 

^Sted*"^"^^  ^"^"  S^^^^^'  presented  in  Chapter  II,  showed  that  the  United  States  has  the 
honor  of  having  set  a  standard  to  the  world  of  municipal  legislation 
directed  to  the  fulfilment  of  the  international  obligations  of  a  neutral 
state,  the  judicial  interpretation  of  the  existing  neutrality  laws,  pre- 
sented in  Chapter  III,  has  made  it  clear  that  there  are  serious  defi- 
ciencies in  those  laws.  These  deficiencies  are  due  partly  to  the  intro- 
duction into  international  relations  of  stricter  principles  of  neutral 
duty,  and  partly  to  the  fact  that  changes  in  the  methods  and  in- 
struments of  warfare  during  a  period  of  nearly  one  hundred  years 
have  resulted  in  requiring  a  new  application  of  principles  of  neutral 
duty  which  were  equally  recognized  in  1818  as  they  are  to-day.  In 
the  course  of  pointing  out  these  deficiencies  it  will  be  found  convenient 
to  suggest  certain  recommendations  by  way  of  amendment  to  indi- 
vidual sections  of  the  Neutrality  Act.  These  recommendations  will  be 
in  accordance  with  the  principles  of  neutral  duty  accepted  by  nations 
at  the  present  day,  irrespective  of  the  fact  that  the  practice  of  nations 
may  not  yet  have  defined  all  the  applications  of  those  principles  to 
possible  circumstances,  or  that  other  nations  may  have  failed  as  yet 
to  enact  legislation  similar  to  that  adopted  by  the  United  States  for 
the  enforcement  of  those  principles  within  its  own  dominions.^ 

lit  may  be  observed  in  this  connection  that  Great  Britian  and  the  United 
States  are  the  only  countries  which  have  adopted  neutrality  legislation  of  a 
comprehensive  character,  defining  in  detail  the  acts  which  the  state  believes 
to  be  contrary  to  the  duties  of  neutrality  and  providing  specific  punishment  for 
them.  The  states  of  continental  Europe  have  been  satisfied  with  legislation 
drawn  up  in  very  general  terms ;  France  has.  among  the  articles  of  her  Code 
Penal,  two  general  provisions  which  have  been  interpreted  so  as  to  cover  the 
obligations  of  neutrahty.  and  which  have  formed  the  basis  for  similar  legislation 
in  Italy,  Prussia,  Russia,  Spain  and  other  countries.  Arts.  84  and  85  of  the 
Code  Penal  read  as  follows : 

Art.  84.  Whoever,  by  hostile  acts  not  approved  by  the  government,  shall 
have  exposed  the  state  to  a  declaration  of  war,  shall  be  punished  with  ban- 
ishment; and  if  war  has  resulted,  with  deportation. 

Art.  85.  Whoever,  by  acts  not  approved  by  the  government,  shall  have 
exposed  the  French  to  reprisals,  shall  be  punished  by  banishment. 

These  articles  come  under  the  general  heading  "Crimes  and  Offenses  against 
the  Safety  of  the  State,"  and  it  should  be  noted  that  they  were  not  originally 


DEFICIENCIES  OF  THE   NEUTRALITY   LAWS 


103 


It  will  serve  to  prepare  the  way  for  a  just  estimate  of  the  deficiencies  Certain  unneutral 
of  the  present  neutrality  laws  of  the  United  States  if  consideration  is  scope  of  neu- 
first  given  to  certain  classes  of  acts  which  might  of  their  nature  seem  trality  laws, 
to  deserve  to  be  included  in  a  neutrality  code,  but  which  international 
custom  has  decided  need  not  be  so  included.  It  was  pointed  out  in 
Chapter  P  that  a  neutral  state,  owing  to  the  fact  that  it  cannot  exer- 
cise an  effective  control  over  its  citizens  beyond  its  own  dominions, 
may  not  be  held  accountable  by  a  belligerent  even  for  acts  of  direct 
hostility  committed  by  its  citizens  against  the  belligerent,  provided 
those  acts  do  not  take  their  inception  upon  the  territory  of  the  neutral 
state.  Moreover,  neutral  states  are  not  called  upon  to  restrict  the  ordi- 
nary commercial  undertakings  of  their  citizens  merely  because  those 
undertakings  happen,  when  war  is  in  progress  between  foreign  coun- 
tries, to  result  in  direct  or  indirect  assistance  being  given  to  one  of  the 
parties  to  the  disadvantage  of  the  other.  Consequently,  in  entering 
upon  an  examination  of  the  deficiencies  of  the  neutrality  laws  of  the 
United  States,  a  distinction  must  be  made  between  those  acts  of  its 
citizens  which  the  United  States,  as  a  neutral  state,  is  not  under  an 
obligation  to  forbid,  and  which  are,  therefore,  not  properly  to  be  in- 
cluded in  a  neutrality  code,  and  those  acts  of  its  citizens  which  the 
United  States,  as  a  neutral  state,  is  under  obligation  to  forbid,  but 
which,  owing  to  defective  legislation,  are  not  actually  included  in  the 
Act  of  1818.  We  shall  begin  with  a  consideration  of  the  acts  which 
a  state  is  not  under  obligation  to  forbid. 


With  respect  to  the  trade  of  neutral  citizens  with  a  belligerent  it  will   Trade  between 

be  remembered  that  war  gives  rise  to  a  conflict  of  rights  between  bel-  neutral   citizens 

°  °  and  belligerents. 

^See  Chap.  I,  pp.  7-8. 

enacted  with  the  object  of  preserving  the  neutrality  of  the  state.  In  an  edition 
of  the  Code  Penal  annotated  by  E.  Gargon,  I,  212,  the  following  comment 
is  made  upon  them.:  "In  passing  them  [Arts.  84  and  85],  the  legislator  had 
not  as  his  direct  and  principal  aim  to  protect  foreign  states  or  individuals,  but 
to  prevent  acts  which  are  dangerous  for  France  and  the  French;  this  explains 
the  gravity  of  the  penalties,  and  the  position  of  those  provisions  among  crimes 
against  the  safety  of  the  state." 

It  is  true  that  upon  the  outbreak  of  a  war  the  neutrality  proclamations  of 
European  States  generally  contain  prohibitions  against  the  commission  of  acts 
in  the  interest  of  one  belligerent  to  the  injury  of  the  other,  but  such  pro- 
hibitions have,  as  a  rule,  no  penalty  attached  to  them  other  than  a  warning 
of  the  withdrawal  of  the  protection  of  the  state  against  repressive  measures 
which  may  be  taken  by  the  injured  belligerent.  Kleen  characterizes  these 
methods  of  preventing  violations  of  neutrality  as  being  both  inadequate  and 
irregular;  "They  give,"  he  says,  "only  a  very  uncertain  guarantee  of  neu- 
trality, which  it  is  scarcely  possible  to  maintain  except  by  municipal  legislation 
penalizing  violations  and  giving  to  the  authorities  preventative  as  well  as  re- 
pressive powers."    Lois  et  Usages  de  la  Neutralite,  I,  318. 


104  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

ligerent  and  neutral  states.  On  the  one  hand  neutral  states,  being  at 
peace  with  the  parties  at  war,  have  a  right  to  continue  to  maintain 
commercial  relations  with  them;  and  on  the  other  hand  the  belliger- 
ents have  each  the  right  to  put  a  check  to  the  commerce  of  neutrals 
in  as  far  as  it  may  contribute  to  the  strength  of  the  enemiy,  and  thus 
impede  the  conduct  of  hostilities/  The  result  has  been  a  compromise. 
Neutral  states  have  disclaimed  responsibility  for  the  direct  or  indirect 
assistance  which  may  be  given  to  one  or  other  of  the  belligerents 
by  the  commercial  activities  of  their  citizens.  In  the  first  place,  as  a 
practical  matter,  it  would  be  impossible  for  neutral  states  effectively 
to  prevent  all  commerce  between  their  citizens  and  the  parties  at  war, 
and  in  the  second  place,  even  could  neutral  states  have  done  so,  they 
have  been  unwilling  to  assume  so  difficult  a  task  for  themselves,  or  to 
place  so  heavy  a  burden  upon  their  citizens.  But,  while  having  suc- 
cessfully vindicated  their  claim  not  to  be  held  responsible  for  the 
mercantile  undertakings  of  their  citizens,  neutral  states  have  ac- 
knowledged the  right  of  the  injured  belligerent  to  capture  and  con- 
fiscate the  property  of  their  citizens  destined  to  an  enemy  port,  when 
the  possession  of  such  property  would  enable  the  enemy  to  oft'er  a 
more  effective  resistance. 
Contraband  of  What  is  the  character  of  the  commercial  property  thus  held  liable  to 

capture  and  confiscation  as  being  '"contraband  of  war"?  In  general  it 
may  be  said  to  include  not  only  articles  such  as  arms,  ammunition  and 
other  objects  of  immediate  use  in  war,  but  also  many  articles  which 
form  objects  of  the  ordinary  commerce  in  time  of  peace,  when  the 
destination  of  such  articles  indicates  that  they  are  intended  for  the 
use  of  the  military  or  naval  forces  of  the  enemy.  As  yet  there  is 
no  fixed  rule  of  international  law  defining  the  precise  articles  which 
may  properly  be  considered  contraband ;-  but  as  the  decision  of  what 
is  contraband  does  not  fall  to  the  duty  of  the  neutral  state,  the  ques- 
tion is  not  of  importance  in  connection  with  a  neutrality  act. 
Traditional  policy  Commerce  in  contraband  is,  accordingly,  free  to  the  citizens  of  a 
of  the  United  neutral  state  in  so  far  as  the  state  itself  is  concerned,  while  to  the 

belligerent  who  is  injured  by  such  commerce  is  left  the  right  to  con- 
fiscate the  commodities  in  question  if  they  can  be  captured.  This  doc- 
trine has  always  been  upheld  by  the  United  States  as  being  the  estab- 
lished rule  of  international  law.    It  was  asserted  by  Jefferson  in  1793, 

iSee  above,  pp.  8-9. 

2The  Declaration  of  London  of  February  26,  1909,  offers  a  classification  of 
contraband  and  non-contraband  articles;  but  thus  far  that  convention  has  not 
been  ratified  by  the  great  powers  as  a  body. 


DEFICIENCIES  OF  THE   NEUTRALITY  LAWS  105 

in  answer  to  the  complaints  of  the  British  minister  that  French  agents 
were  buying  arms  in  the  United  States;'-  it  was  asserted  in  1796  by 
Mr.  Pickering,  in  answer  to  complaints  of  the  French  government,^ 
by  Mr.  Marcy  in  1855,  during  the  Crimean  war,  in  answer  to  com- 
plaints of  the  British  government;^  by  Mr.  Seward  in  1862,  in  answer 
to  complaints  of  Mexico;*  by  Mr.  Bayard  in  1885,  in  answer  to  com- 
plaints of  Colombia;'*  by  Mr.  Blaine  in  1891,  in  answer  to  complaints 
of  Chile  f  by  Mr.  Olney  in  1896,  in  answer  to  complaints  of  Spain  -J  and 
on  many  other  occasions.  Art.  7  of  the  Convention  relating  to  the 
nights  and  Duties  of  Neutral  Powers  in  Maritime  War  adopted  at  The 
Hague  in  1907  embodied  an  international  agreement  to  the  same  effect,^ 
.and  thus  the  doctrine  consistently  asserted  by  the  United  States  took 
its  place  as  a  definitely  recognized  rule  of  international  law. 

But  while  a  neutral  state  is  under  no  obligation  from  the  standpoint  Circumstances 
of  international  law  to  prevent  commerce  in  contraband  from  being  ^^xcTption^  ^" 
■carried  on  by  its  citizens,  it  would  be  unquestionably  a  friendly  act  to  to  the  rule, 
prohibit  such  commerce,  especially  in  arms  and  munitions  of  war,  in 
•certain  cases  of  domestic  insurrection  where  the  loss  to  neutral  trade 
would  be  insignificant  in  comparison  with  the  injury  which  such  com- 
merce might  cause  to  the  government  against  which  the  insurgents  are 
in  rebellion.  An  instance  of  such  action  is  furnished  by  the  conduct 
■of  the  United  States  during  the  rebellion  in  Mexico  in  1912.®  In  this 
instance,  however,  it  may  well  be  thought  that  the  action  taken  by  the 
United  States  was  based  upon  a  desire  to  prevent  the  continuance  of 
a  trade  which  practically  made  the  territory  of  the  United  States,  at 
many  points  along  the  frontier,  a  base  of  naval  supplies  for  the  insur- 
gent forces ;  and  while  the  international  law  of  neutrality  did  not  apply 
to  the  situation,  owing  to  the  fact  that  Mexico  had  not  declared  the 
existence  of  a  state  of  war,  it  devolved  upon  the  United  States,  as 
being  at  peace  with  Mexico,  to  forbid  a  commerce  in  contraband  which 
'directly  tended  to  further  revolt  in  that  country. 

Just  as  citizens  of  a  neutral  state  are  free  to  engage  in  contraband  Belligerent  trade 

in    neutral    ports. 

iSee  Am.  State  Papers,  For.  Rel.,  I,  147.    Moore,  Int.  Law  Digest,  VII,  955. 

Mm.  State  Papers,  For.  Rel.,  I,  646.     Moore,  VII,  955. 

^Brit.  and  For.  State  Papers.  XLVII,  424.  Moore,  VII,  957. 

4Moore,  VII,  958. 

''For  Rel.,  1885,  238.    Moore,  VII,  962. 

^For.  Rel.,  1891,  314.     Moore,  VII,  965. 

^Moore,  VII,  965-966. 

^"A  neutral  power  is  not  bound  to  prevent  the  export  or  transit,  on  behalf 
of  either  belligerent,  of  arms,  munitions  of  war,  or,  in  general,  of  anything 
•which  Could  be  of  use  to  an  army  or  fleet." 

•'See  above,  p.  58. 


trade  becomes  ex' 
cessive 


106  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

commerce  with  a  belligerent,  subject  merely  to  the  penalty  of  capture 
and  confiscation  of  their  goods  by  the  other  belligerent,  so  they  are 
free  to  sell  their  goods  in  their  own  ports  to  merchant  vessels  of  a 
belligerent  state  without  restriction.  Arms,  ammunition  and  equip- 
ments of  war  of  every  kind  may  be  furnished  to  such  vessels  as  well 
as  the  ordinary  objects  of  trade  in  time  of  peace.  But  while,  as  a  gen- 
eral rule,  international  law  has  never  required  neutral  states  to  forbid 
belligerent  merchant  vessels  access  to  their  ports,  it  may  be  questioned 
whether  an  exception  to  this  rule  should  not  be  allowed  when  belliger- 
ent merchant  vessels  carry  on  in  a  neutral  port  such  an  extensive  com- 
merce in  articles  of  war  as  to  constitute  the  neutral  port  a  base  of  mili- 
tary supplies.  In  principle,  it  would  seem  that  the  scale  upon  which 
such  trade  in  neutral  ports  is  carried  on  should  not  affect  its  character, 
that  is  to  say,  should  not  stamp  it  as  being  in  violation  of  the  duties 
Case  when  such  of  the  neutral  state.  On  the  other  hand,  as  a  practical  question,  it  is 
evident  that  if  a  belligerent  is  allowed  to  carry  on  in  neutral  ports  a 
systematic  and  wholesale  trade  in  supplies  of  war,  he  will  possess  a 
sensible  advantage  over  his  enemy  who  may  not  be  in  a  position  to 
make  use  of  neutral  ports,  or  he  will  be  able  to  continue  a  war  which 
his  own  slender  domestic  resources  would  compel  him  to  abandon. 
In  the  Case  of  the  United  States  as  presented  to  the  Tribunal  of  Arbi- 
tration at  Geneva,  the  point  was  made  that  "while  it  is  not  maintained 
that  belligerents  may  infringe  upon  the  rights  which  neutrals  have  to 
manufacture  and  deal  in  such  military  supplies  in  the  ordinary  course 
of  commerce,  it  is  asserted  with  confidence  that  a  neutral  ought  not  to 
permit  a  belligerent  to  use  the  neutral  soil  as  the  main,  if  not  the  only 
base  of  its  military  supplies.  .  .  .  The  United  States  confidently 
submits  to  the  Tribunal  of  Arbitration  that  it  is  an  abuse  of  a  sound 
principle  to  extend  to  such  combined  transactions  as  those  of  Huse^ 
Heyliger,  Walker,  and  Fraser  Trenholm  &  Co.,  the  well-settled  right 
of  a  neutral  to  manufacture  and  sell  to  either  belligerent,  during  a 
war,  arms,  munitions,  and  military  supplies."^ 

Whatever  the  justice  of  the  contention  of  the  United  States  in  the 
individual  instance  just  quoted,  it  would  be  very  difficult  to  make  it  the 
basis  of  a  standard  of  neutral  obligation  either  capable  of  formulation 
as  a  principle  or  of  application  as  a  practical  rule.  Such  a  standard 
would  impose  upon  the  neutral  state  the  necessity  of  determining 
whether  under  the  circumstances  one  belligerent  was  being  favored 
at  the  expense  of  the  other,  whether  the  commerce  in  contraband  had 
reached  the  point  of  being  wholesale  in  amount,  and  other  similar 

"^Papers  Relating  to  the  Treaty  of  Washington,  I,  125-126. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS 


107 


questions  to  which  no  fixed  rule  could  be  applied.  Accordingly, 
while  circumstances  may  arise  calling  for  action  on  the  part  of  a  neu- 
tral state  to  restrict  the  purchase  by  belligerents  of  military  supplies 
in  its  ports,  it  is  neither  necessary  nor  practicable  to  enact  any  perma- 
nent law  on  the  subject. 

A  different  case  is  presented  when  a  belligerent  war  vessel  comes 
into  a  neutral  port  for  the  purchase  of  military  or  other  supplies.  The 
furnishing  of  such  supplies  by  the  citizens  of  a  neutral  state  would 
be  directly  subservient  to  the  purposes  of  aggressive  action  inasmuch 
as  it  would  put  the  belligerent  in  a  position  to  continue  hostilities  im- 
mediately. Accordingly,  belligerent  war  vessels  are  denied  at  the 
present  day  the  privilege  of  freely  purchasing  supplies  in  neutral 
ports,  and  neutral  citizens  should  be  prosecuted  for  selling  or  deliver- 
ing supplies  to  them.^ 

A  further  exception  to  the  rule  that  a  neutral  state  is  under  no  obli- 
gation to  prevent  commerce  in  contraband  on  the  part  of  its  citizens 
is  to  be  found  in  the  special  treatment  accorded  to  ships  which  have 
been  armed  for  warlike  uses  or  are  suitable  for  use  in  time  of  war. 
While  on  the  one  hand  it  would  seem  that  a  vessel  built  and  equipped 
for  warlike  uses  should,  by  its  nature,  belong  to  the  class  of  munitions 
of  war  which  may  be  freely  sold  by  the  citizens  of  a  neutral  state  to  a 
belligerent,  whether  within  the  neutral  port,  or  on  the  high  seas,  or 
in  a  port  of  the  belligerent,  on  the  other  hand  it  is  clear  that  a  war- 
ship built  by  a  neutral  citizen  and  delivered  to  a  belligerent  within  or 
without  neutral  territory  is  an  instrument  of  war  so  powerful  and  so 
complete  as  to  practically  amount  to  an  armed  expedition  organized 
in  the  neutral  port.  What,  then,  is  the  obligation  of  a  neutral  state  to 
prevent  its  citizens  from  selling  war-ships  to  a  belligerent  as  distinct 
from  the  other  objects  which  constitute  contraband  of  war?  The 
question  has  been  one  of  long  standing  controversy  and  it  cannot  be 
said  that  the  law  on  the  subject  is  as  yet  settled.  Its  great  importance 
requires  that  it  be  treated  somewhat  in  detail. 

It  will  be  noted  at  the  outset  that  there  are  several  distinct  aspects 
of  the  question.  First,  there  is  the  case  of  a  war-ship  which  is  built 
by  a  neutral  citizen  to  the  order  of  a  belligerent  under  a  definite  con- 
tract. In  this  case  the  builder  is  presumably  aware  of  the  ultimate 
purpose  to  which  the  vessel  will  be  put,  although  he  may  have  no  spe- 
cial interest  in  it  himself.  Secondly,  there  is  the  case  of  a  war-ship,  not 
built  to  order  as  above,  which  is  sold  to  a  belligerent  or  to  his  agents 
in  a  neutral  port.    In  this  case  the  seller  is  likewise  presumably  aware 


Supplies  to  war 
vessels  limited. 


Armed    ships    ex- 
cepted   from    rule 
of  commerce  in 
contraband. 


Distinctions  to  be 
observed 


iThis   subject   is   treated   of   in    detail    under   a   subsequent   heading,    see   pp. 
143-146. 


108  NEUTRALITY  LAV/S  OF  THE  UNITED  STATES 

of  the  ultimate  purposes  for  which  the  vessel  is  intended,  although  here 
again  he  may  have  no  special  interest  in  them.  Whether  a  war-ship 
so  purchased  should  be  allowed  to  leave  the  neutral  port  commissioned 
and  sufficiently  manned  to  be  able  to  commence  hostilities  immediately, 
is  another  question ;  for  to  permit  the  departure  of  an  armed  naval  ex- 
pedition would  evidently  be  as  much  in  contravention  of  the  duties  of 
neutrality  as  to  permit  the  departure  of  a  military  expedition  by  land. 
Thirdly,  there  is  the  case  of  a  war-ship,  not  built  to  order,  which  is 
taken  by  a  neutral  citizen  to  a  belligerent  port  and  there  sold  to  the 
belligerent.  In  this  case  the  vessel  undertakes  its  voyage  to  the  bel- 
ligerent port  subject  to  the  risk  of  capture  and  confiscation  by  the 
other  belligerent  as  contraband.  Fourthly,  in  each  of  the  above  cases 
the  vessel,  although  primarily  built  for  use  in  war,  may  at  the  time  of 
the  sale  be  in  fact  unarmed,  so  that  while  readily  adaptable  for  bel- 
ligerent purposes,  it  may  not  be  actually  able  to  commit  hostilities  at 
the  time  of  leaving  the  neutral  port.  Fifthly,  there  is  the  case  of 
vessels  built  primarily  for  commercial  purposes,  but  which,  by  the  ad- 
dition of  a  small  armament,  may  be  converted  into  light-armed 
cruisers.  This  was  the  type  of  vessels  which  were  more  often  used  in 
privateering  and  which  were,  in  consequence,  the  ones  generally  re- 
ferred to  in  the  opinions  given  with  regard  to  the  right  to  sell  armed 
vessels.  It  is  unfortunate  that,  in  the  discussion  which  has  taken  place 
with  respect  to  the  right  of  neutral  citizens  to  sell  armed  vessels  among 
other  articles  which  are  contraband  of  war,  the  distinction  between 
the  several  kinds  of  armed  vessels  and  the  various  conditions  under 
which  the  sale  may  take  place  has  often  been  overlooked. 
Purpose  of  Act  of  Let  us  first  consider  the  provisions  of  the  Neutrality  Act  which 
bear  upon  the  question.  It  will  be  remembered  that  Sec.  3  of  the  orig- 
inal Neutrality  Act  of  1794^  prohibited  the  fitting  out  and  arming  of 
vessels  within  the  ports  of  the  United  States  with  intent  that  such 
vessels  should  be  used  in  the  service  of  a  foreign  state  to  commit 
hostilities  against  a  state  with  which  the  United  States  were  at  peace. 
Apart  from  historical  evidence  to  the  same  effect,  the  wording  of  the 
section  alone  would  indicate  that  the  prohibition  was  directed  against 
the  practice  of  privateering  so  common  at  that  time.  The  expression 
"with  intent  that  such  vessel  shall  be  used  in  the  service  of"  has  refer- 
ence to  a  deliberate  design  on  the  part  of  the  person  fitting  out  and 
arming  the  vessel.  "Intent"  in  criminal  law  is  ordinarily  interpreted 
to  include  some  measure  of  malevolent  will  on  the  part  of  a  person  en- 
gaged in  the  execution  of  a  specific  criminal  act.    A  mere  transaction 

iSee  Chap.  II,  p.  26. 


1794. 


DEFICIENCIES  OF  THE   NEUTRALITY  LAWS  109 

of  bargain  and  sale,  in  which  the  seller  has  no  other  interest  than  that 
of  profit  from  the  article  manufactured,  cannot  be  said  to  imply  an 
intent  on  the  part  of  the  seller  that  the  article  shall  be  used  for  the 
commission  of  definite  acts  of  hostility,  merely  because  he  knew  in 
making  it  that  it  was  adapted  to  uses  of  that  general  kind.  Accord- 
ingly, it  would  seem  that  the  sale  of  an  armed  vessel  to  a  belligerent  in 
a  port  of  the  United  States  could  not  properly  have  been  held  to  sub- 
ject the  vendor  to  prosecution  for  violation  of  the  Neutrality  Act. 
That  the  act  of  building  io  order  a  vessel,  which  it  is  known  that  the 
purchasing  belligerent  will  use  to  commit  hostilities  against  a  friendly 
state,  would  have  been  considered  as  coming  within  Sec.  3  of  the 
statute,  is  not  certain.  Strictly  speaking,  the  "intent"  of  a  person  who 
is  building  a  vessel  to  order  is  merely  to  produce  a  vessel  which  will 
satisfy  the  requirements  of  the  contract,  and  a  mere  knowledge  of  the 
use  to  which  the  vessel  will  be  put  is  not  sufficient  to  constitute  an 
intent  on  his  part  that  it  shall  be  so  used.^  But  while  it  might  not 
have  been  possible  to  convict  a  person  who  was  merely  acting  as  the 
commercial  agent  of  a  belligerent,  it  is  clear  that,  as  regards  the  bel- 
ligerent himself,  the  construction  and  fitting  out  of  a  vessel  in  a  port 
of  the  United  States,  through  the  act  of  an  agent,  would  very  properly 
have  been  regarded  as  a  violation  of  the  neutrality  of  the  United 
States  by  inference  from  the  terms  of  Sec.  4  of  the  Act  of  1794,  which 
makes  it  unlawful  for  any  person  to  increase  or  augment  within  the 
jurisdiction  of  the  United  States  the  force  of  a  ship  of  war  in  the 
service  of  a  belligerent.^ 

It  is  not  asserted  that  the  prohibition  of  the  sale  of  an  armed  ves-  Privateering  the 
sel  to  a  belligerent  in  a  neutral  port  should  not  properly  have  been  ^^i^^^  *"  '^'^w. 
included  in  the  Neutrality  Act  of  1794,  but  merely  that  it  was  not  so 
included  or  intended  to  be  included.  Unquestionably  the  sale  of  an 
armed  vessel  to  a  belligerent  in  a  neutral  port,  even  though  the  vessel 
should  leave  the  port  not  in  a  condition  to  commence  hostilities  im- 
mediately, might  be  a  far  greater  measure  of  assistance  to  a  belligerent 
than  the  augmenting  and  increasing  of  the  force  of  one  of  his  ships 
of  war,  which  is  forbidden  by  Sec.  4  of  the  Act  of  1794.  But  that 
argument  was  not  urged  upon  the  framers  of  the  Act  of  1794,  who 
had  before  them  the  practical  question  of  preventing  privateering  and 
were  not  concerned  with  abstract  questions.  Why  should  a  belligerent 
have  bought  vessels  in  neutral  ports  when  there  were  always  to  be 

^The  doctrine  of  "constructive   intent"   would  not  seem  to   apply   to  an  act 
not  per  se  criminal. 

2See  Chap.  II,  p.  27;  App.,  p.  173. 


110 


NEUTRALITY  LAWS  OF  THE  UNITED   STATES 


Failure  of  bill  to 
prevent  sale  of 
war  vessels. 


Opinions  of  judi- 
cial and  executive 
departments  at 
variance. 


Pickering's    opin- 
ion in  1796. 


found  adventurers  who  were  ready  to  accept  commissions  in  his  service 
to  command  privateers,  and  accomplish  the  chief  design  of  the  bel- 
ligerent by  preying  upon  the  commerce  of  his  enemy? 

In  1817  a  bill  was  presented  in  the  House  of  Representatives  by 
the  Committee  on  Foreign  Relations,  the  first  section  of  which  pro- 
hibited citizens  of  the  United  States  from  selling  or  contracting  for 
the  sale  of  vessels  of  war  to  be  delivered  in  the  United  States  or  else- 
where with  intent  or  previous  knowledge  that  the  vessel  should  or 
would  be  employed  to  commit  hostilities  against  a  friendly  state.^  This 
would  seem  to  be  conclusive  evidence  of  the  correctness  of  the  inter- 
pretation given  above  of  Sec.  3  of  the  Act  of  1794,  namely,  that  the 
clause  "with  intent  that  such  ship  or  vessel  shall  be  employed  in  the 
service  of"  did  not  cover  the  mere  sale  of  armed  vessels  to  a  belligerent. 
The  first  section  of  the  bill  was  bodily  stricken  out  by  the  Senate,  and 
thus  the  prohibition  of  the  sale  of  vessels  of  war  was  definitely  aban- 
doned. 

Sec.  2  of  the  Act  of  1817,  which  later  became  Sec.  10  of  the  Act  of 
1818,  requires  that  owners  or  consignees  of  armed  vessels  leaving  the 
ports  of  the  United  States  and  belonging  wholly  or  in  part  to  citi- 
zens thereof,  shall  give  bond  that  the  vessel  shall  not  be  employed  by 
such  owners  to  commit  hostilities  against  a  friendly  state.^  Here 
again  it  is  clear  that  the  reference  is  wholly  to  the  practice  of  pri- 
vateering. The  owners  of  the  vessel  need  only  give  bond  that  the 
vessel  will  not  be  used  by  themselves  to  commit  hostilities  against  a 
friendly  state,  and  there  is  no  evidence  of  an  intention  to  prohibit  the 
bona  fide  sale  of  vessels. 

The  dicta  of  the  United  States  courts  and  the  opinions  of  the  ex- 
ecutive branch  of  the  United  States  government  in  the  matter  are 
considerably  at  variance,  and  it  is  difficult  to  form  any  consistent 
rule  out  of  them.  This  is  partly  due  to  the  fact  that  these  dicta  and 
opinions  were  as  a  rule  confined  to  one  aspect  of  the  question,  though 
they  have  been  frequently  quoted  as  applying  to  the  question  in  gen- 
eral. 

In  1796  Mr.  Pickering,  Secretary  of  State,  in  a  letter  to  the  French 
minister,  M.  Adet,  says  :^  'T  conclude  that  it  is  not  unlawful  for  the 
citizens  of  the  United  States  to  sell  or  hire  their  unarmed  vessels  to 
any  of  the  Powers  at  war,  and  to  man  the  vessels  so  sold  or  hired, 
these  continuing  unarmed."    The  emphasis  upon  unarmed  vessels  need 

^See  Chap.  II,  p.  37. 

^Ibid. ;  Chap.  Ill,  p.  96. 

Mm.  State  Papers,  For.  Rel,  I,  646. 


DEFICIENCIES  OF  THE   NEUTRALITY  LAWS  HI 

not  be  taken  as  necessarily  excluding  the  sale,  pure  and  simple,  of 
armed  vessels,  since  Mr.  Pickering  was  defending  the  right  of  citizens 
of  the  United  States  to  man  American  vessels  which  had  been  pur- 
chased by  Great  Britain  for  the  purpose  of  transporting  flour  to  Eng- 
land. 

In  1816,  during  the  wars  of  the  South  American  colonies  against  Rush's  opinion 
Spain,  Attorney  General  Rush  rendered  an  opinion  in  which  he  said  ^"  ^°'-°- 
that  he  was  "aware  of  no  law  of  the  United  States  that  can  prevent 
a  merchant  or  ship-owner  selling  his  vessel  and  cargo  (should  the 
latter  even  consist  of  warlike  stores)  to  a  citizen  or  inhabitant  of 
Buenos  Ayres,  or  of  any  part  of  South  America.  Nor  will  it,  do  I 
think,  make  any  difference  whether  such  sale  be  made  directly  in  a 
port  of  the  United  States,  with  immediate  transfer  and  possession 
thereupon;  or  under  a  contract  entered  into  here,  with  delivery  to 
take  place  in  a  port  of  South  America."^  The  vessel  in  question  was 
not  armed  at  the  time  of  the  sale,  but  the  Attorney  General  said 
that  while  it  would  be  unlawful  for  her  to  seek  an  armament  for  hos- 
tile purposes,  she  might  take  on  arms  and  military  stores  "for  neces- 
sary self-defence." 

In  1822  a  decision  was  rendered  by  the  Supreme  Court  of  the  Opinion  in  case 
United  States  in  which  it  was  stated  as  an  obiter  dictum  by  Mr.  Jus-  jj.fnTdaT"^^'^ 
tice  Story  that  "there  is  nothing  in  our  laws,  or  in  the  law  of  nations, 
that  forbids  our  citizens  from  sending  armed  vessels,  as  well  as  muni- 
tions of  war,  to  foreign  ports  for  sale.  It  is  a  commercial  adventure 
which  no  nation  is  bound  to  prohibit;  and  which  only  exposes  per- 
sons engaged  in  it  to  the  penalty  of  confiscation."-  There  can  be  no 
question  of  the  truth  of  this  statement  at  the  time  at  which  it  was 
made,  but  it  should  be  observed  that  it  deals  with  only  one  aspect  of 
the  question,  namely,  the  sale  of  armed  vessels  in  belligerent  ports. 

In  1827  Mr.  Clay,  Secretary  of  State,  in  letters  to  the  Spanish  le-  Clay's  opinion 
gation,  defended  the  right  of  American  shipbuilders  to  sell  vessels  *"  ^^■ 
to  belligerent  states.  On  June  9  Mr.  Clay  wrote  to  the  Spanish 
charge  as  follows:  "If  vessels  have  been  built  in  the  United  States 
and  afterwards  sold  to  one  of  the  belligerents  and  converted  into  ves- 
sels of  war,  our  citizens  engaged  in  that  species  of  manufacture  have 
been  equally  ready  to  build  and  sell  vessels  to  the  other  belligerent. 
In  point  of  fact  both  belligerents  have  occasionally  supplied  them- 
selves with  vessels  of  war  from  citizens  of  the  United  States."  Again, 
on  October  31,  Mr.  Clay  wrote  to  the  Spanish  minister  as  follows: 

n  Op   Atty.  Gen.,  190. 

^The  Santissima  Trinidad,  7  Wheat.,  283. 


112 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Opinion  in  case  of 
United  States  v. 
Qiiincy. 


Legare's  opinion 
in  1841. 


"It  may  possibly  be  deemed  a  violation  of  strict  neutrality  to  sell  to 
a  belligerent  vessels  of  war  completely  equipped  and  armed  for  bat- 
tle, and  yet  the  late  Emperor  of  Russia  could  not  have  entertained 
that  opinion,  or  he  would  not  have  sold  to  Spain  during  the  present 
war,  to  which  he  was  a  neutral,  the  whole  fleet  of  ships  of  war,  in- 
cluding some  of  the  line.  But  if  it  be  forbidden  by  the  law  of  neu- 
trality to  sell  to  a  belligerent  an  armed  vessel  completely  equipped 
and  ready  for  action,  it  is  believed  not  to  be  contrary  to  that  law  to 
sell  to  a  belligerent  a  vessel  in  any  other  state,  although  it  may  be 
convertible  into  a  ship  of  war."^ 

Mr.  Clay's  doubts  as  to  the  propriety  of  the  sale  of  fully  armed 
vessels  to  a  belligerent  appear  to  have  been  based  upon  the  general 
principles  of  neutral  duty,  in  which  estimate  he  was  unquestionably 
correct,  rather  than  upon  a  strict  interpretation  of  the  neutrality  lav/s 
of  the  United  States. 

In  1832  the  Supreme  Court  of  the  United  States,  in  rendering  the 
decision  in  the  case  of  United  States  v.  Qiiincy,-  entered  into  a  careful 
discussion  of  the  "intent"  necessary  to  constitute  an  offense  under 
Sec.  3  of  the  Act  of  1818.  Stress  was  laid  upon  the  fact  that  it  is 
the  intent,  that  is  "the  material  point  on  which  the  legality  or  crimi- 
nality of  the  act  must  turn;  and  decides  whether  the  adventure  is  of 
a  commercial  or  warlike  character" ;  this  intent  must  be  formed  be- 
fore the  vessel  leaves  the  United  States,  and  it  must  be  "a  fixed  in- 
tention ;  not  conditional  or  contingent,  depending  on  some  future  ar- 
rangements." That  the  intent  must  be  a  hostile  one  may  be  gath- 
ered from  the  statement  of  the  court  that  "all  the  latitude  necessary 
for  commercial  purposes  is  given  to  our  citizens,  and  they  are  only 
restrained  from  such  acts  as  are  calculated  to  involve  the  country  in 
war."  The  case  before  the  court  was,  however,  that  of  a  privateer, 
and  while  it  may  be  inferred  that  the  court  would  have  recognized  as 
proper  a  sale  of  the  vessel  at  the  port  of  destination,  no  inference 
can  be  drawn  as  to  the  attitude  of  the  court  towards  a  sale  of  the  ves- 
sel within  the  limits  of  the  United  States. 

In  1841,  during  the  war  between  Mexico  and  Texas,  two  vessels 
of  war  were  built  and  fitted  out  in  the  port  of  New  York  for  the 
Mexican  service.  An  opinion  was  asked  of  Attorney  General  Le- 
gare  by  the  Secretary  of  the  Treasury  as  to  the  proper  action  to  be 
taken  in  the  case.  Mr.  Legare,  writing  under  the  impression  that 
the  vessels  were  to  be  delivered  to  the  Mexican  government  in  the 


iMoore,  Int.  Law  Digest,  VII,  950,  951. 
26  Pet.,  445. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS  113 

port  of  New  York,  had  "no  hesitation  in  saying  that  it  presents  a 
case  clearly  within  the  Act  of  1818,  not  only  within  the  tenth  sec- 
tion referred  to  by  that  gentleman  [the  collector  of  New  York],  but 
within  the  third  section."^  On  being  informed  that  the  vessels  were 
not  to  be  delivered  within  the  jurisdiction  of  the  United  States,  and 
that  they  were  to  be  sent  out  of  the  port  unarmed  and  with  every 
possible  precaution  to  insure  their  pacific  conduct  on  the  high  seas, 
Mr.  Legare  responded  to  the  question  whether  the  sale  of  the  vessel 
abroad  came  within  the  statute.  His  reply  was  as  follows:  "I  confess 
my  present  leaning  to  be,  that  all  equipping,  within  our  jurisdiction, 
of  vessels  of  war  for  a  belligerent,  by  an  American  citizen,  knowing 
the  purposes  for  which  they  are  to  be  employed,  is  repugnant  to  the 
law  of  1818.  In  other  words,  that  all  trading  with  a  belligerent  in 
ships  of  war  ready  equipped  for  service  is  contrary  to  our  law  as  it 
now  stands."^  Mr.  Legare  admits  that  his  opinion  was  given  with- 
out "full  and  mature  consideration,"  and  it  is  fair  to  say  that  he  did 
not  distinguish  between  the  actual  prohibitions  of  the  Act  of  1818,  and 
the  prohibitions  properly  demanded  by  the  law  of  neutral  duty. 

It  thus  appears  that,  in  1861,  at  the  outbreak  of  the  Civil  War,  the   State  of  law  in 
law  in  the  United  States  with  regard  to  the  bona  fide  sale  to  a  bel- 
ligerent of  armed  vessels  in  a  neutral  port  was  in  a  very  uncertain 
condition.^    The  Neutrality  Act  of  1818  did  not,  by  its  terms,  prohibit 

13  Op.  Atty.  Gen.,  739. 

^Ibid.  747. 

3It  may  be  observed  that  international  law  with  regard  to  the  same  point 
was  equally  unsettled  at  that  period.  In  the  Case  of  the  United  States  pre- 
sented to  the  Tribunal  of  Arbitration  at  Geneva,  it  was  asserted,  in  answer  to 
a  suggestion  that  the  fitting  out  and  arming  of  ships  of  war  intended  for  the 
service  of  a  belligerent  were,  before  the  Treaty  of  Washington,  to  be  regarded 
as  standing  upon  the  same  footing  with  dealings  in  articles  ordinarily  esteemed  ' 
contraband  of  war,  that  the  legislatures,  executives  and  judiciaries  of  both 
Great  Britian  and  the  United  States  "have  joined  the  civilized  world  in  saying 
that  a  vessel  of  war,  intended  for  the  use  of  a  belligerent,  is  not  an  article 
in  which  the  individual  subject  or  citizen  of  a  neutral  State  may  deal,  subject  to 
the  liability  to  capture  as  contraband  by  the  other  belligerent."  But  the  as- 
sertion was  supported  by  the  opinion  of  but  one  writer  prior  to  1861.  Papers 
Relating  to  the  Treaty  of  Washington,  I,  81.  On  the  other  hand,  in  the 
Counter  Case  presented  by  Great  Britian  to  the  same  Tribunal,  it  was  stated 
that  "the  arbitrators  would  search  in  vain  in  text-books  of  acknowledged 
authority  anterior  to  the  civil  war,  and  in  the  general  practice  of  maritime 
nations,  for  any  proof  or  acknowledgment  of  a  duty  incumbent  on  neutral 
governments  to  prevent  their  citizens  or  subjects  from  supplying  belligerents 
with  ships  adapted  for  warlike  use.  They  would  find  it,  indeed,  asserted,  on 
the  one  hand,  that  among  the  duties  of  a  neutral  government  is  that  of  pre- 
venting hostile  expeditions  in  aid  of  either  belligerent  from  being  organized 
within  and  dispatched  from  its  territory.  They  would  not,  on  the  other  hand, 
find  the  sale  or  delivery  to  a  belligerent  by  a  citizen  or  subject  of  the  neutral 
of  a  vessel  adapted  for  war  classed  among  the  acts  which  the  neutral  govern- 
ment is  bound  to  prevent,  nor  would  they  find  any  distinction  drawn  in  this 


114 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Confederate  cruis- 
ers fitted  out  in 
British  ports. 


the  sale ;  it  merely  prohibited  citizens  of  the  United  States  from  par- 
ticipating in  hostilities  against  a  friendly  power,  either  directly  by 
their  own  act,  or  indirectly,  by  causing  the  preparation  of  the  instru- 
ments of  such  hostilities.  But  the  spirit  of  the  Act  of  1818  unques- 
tionably called  for  a  stricter  rule,  as  did  also  the  fundamental  prin- 
ciples of  international  law.  It  remained  for  the  events  of  the  Civil 
War  to  show  the  imperative  need  of  modifying  existing  international 
custom  in  accordance  with  the  new  conditions  of  warfare  at  sea. 

We  may  here  briefly  review  the  two  chief  cases  in  which  Great 
Britain,  by  permitting  the  construction  in  her  ports  of  vessels  intended 
for  the  use  of  the  Confederate  government,  gave  rise  to  the  accusa- 
tion by  the  United  States  of  a  neglect  to  perform  the  duties  of  a  neu- 
tral state.^  In  the  fall  of  1861  a  contract  was  entered  into  by  agents 
of  the  Confederate  government  with  a  British  firm  for  the  construc- 
tion of  two  vessels  later  known  as  the  Alabama  and  the  Florida. 
Early  in  1862  the  Florida  sailed  from  the  port  of  Liverpool  in  every 
respect  a  man-of-war,  except  that  her  armament  was  not  in  its  place. 
In  June  of  the  same  year  the  Alabama  left  port,  a  man-of-war  by 
construction,  but  at  the  time  without  armament  or  fighting  crew.  In 
Moelfra  Bay,  on  the  English  coast,  she  took  on  board  twenty  or 
thirty  men  and  then  sailed  to  the  Azores  where  she  met,  by  pre- 
arrangement,  the  Agrippina  and  the  Bahama.  From  these  vessels 
she  obtained  her  officers,  her  armament  and  her  coal,  and  when  the 
transshipment  was  made  the  Confederate  flag  was  run  up  and  the 
commission  of  Captain  Semmes  was  produced.  The  damage  inflicted 
upon  the  commerce  of  the  United  States  by  these  two  vessels,  espe- 
cially by  the  former,  was  very  great.  In  both  cases  the  United  States 
minister  had  called  the  attention  of  the  British  government  to  the 
fact  that  the  vessels  were  being  constructed,  and  to  the  circumstances 
justifying  an  assumption  of  the  hostile  use  to  which  they  were  to  be 
put.  A  decision  rendered  by  the  Court  of  Exchequer  in  1863  ex- 
pressed the  interpretation  placed  by  British  courts  upon  the  Brit- 
ish Foreign  Enlistment  Act  of  1819.  Proceedings  were  brought 
under  that  act  against  the  Alexandra,  a  gunboat  launched  at  Liver- 
pool, and  her  hostile  character  was  clearly  proven.  But  the  court  de- 
clared that  a  ship  of  war  was  nothing  more  than  an  article  of  contra- 

ipor  details  as  to  the  Confederate  vessels  built  or  fitted  out  in  British  ports. 

see  Papers  Relating  to  the  Treaty  of  Washington,  IV. 

'' - — ■ — ^ — - 

respect  between  the  sale  and  delivery  of  a  vessel  built  to  order  and  that  of 
a  vessel  not  built  to  order."  In  support  of  this  statement  a  series  of  citations 
from  Vattel,  Azuni,  Lampredi  and  other  writers  on  international  law  was 
presented  in  an  annex  at  the  end  of  the  Counter  Case.    Ibid.  Ill,  217,  395-403. 


DEFICIENCIES  OF  THE   NEUTRALITY  LAWS  115 

band  trade  unless  she  left  port  in  such  a  state  of  completeness  of  ar- 
mament as  to  be  able  to  commence  hostilities  immediately.  Moreover, 
if  a  vessel  when  built  might  be  offered  for  sale  to  a  belligerent,  it 
might  equally  well  be  built  to  the  order  of  a  belligerent.^ 

The  experience  of  the  Civil  War  thus  demonstrated  the  necessity  Evident  necessity 
of  prohibiting  the  construction  for  and  sale  to  belligerents,  by  neutral  o^  stricter  rule, 
citizens,  of  vessels  of  war,  whether  delivery  be  made  within  the 
ports  of  the  neutral  state  or  in  those  of  the  belligerent,  or  on  the 
high  seas.  An  armed  vessel  was  clearly  too  formidable  an  instru- 
ment of  war  to  continue  to  be  placed  in  the  category  of  contraband 
articles,  which  a  belligerent  might  purchase  in  a  neutral  port,  or 
which  a  neutral  might  take  to  a  belligerent  port  for  sale.  Even 
though  the  vessel  left  port  with  her  armament  only  half  completed, 
and  with  no  larger  crew  than  was  necessary  to  navigate  her  and  with- 
out having  received  a  commission,  it  still  remained  true  that  a  bellig- 
erent could  find  in  such  vessel  an  instrument  readily  adaptable  for  im- 
mediate use  in  war.  It  was  then,  as  it  is  under  present  conditions, 
simply  a  case  where  the  magnitude  of  the  consequences  of  an  act  must 
be  considered  as  affecting  the  character  of  the  act ;  so  that  while  the 
sale  in  a  neutral  port  or  the  export  to  a  belligerent  port  of  ordinary 
arms  and  munitions  of  war  need  not  be  forbidden  by  a  neutral  state, 
an  exception  must  be  made  of  armed  vessels.^     The  Neutrality  Acts 

^Attorney  General  v.  Silleni,  Exchequer  Reports  (Hurlstone  and  Coltman) 
II,  431.  Chief  Baron  Pollock  put  the  question  to  the  jury  in  the  following 
terms:  "If  you  think  the  object  was  to  equip,  furnish,  fit  out,  or  arm  that 
vessel  at  Liverpool,  then  that  is  a  sufficient  matter.  But  if  you  think  the 
object  really  was  to  build  a  ship  in  obedience  to  an  order,  and  in  compliance 
with  a  contract,  leaving  it  to  those  who  bought  it  to  make  what  use  they 
thought  fit  of  it,  then  it  appears  to  me  that  the  Foreign  Enlistment  Act  has 
not  been  in  any  degree  broken."  Under  this  instruction  the  jury  rendered  a 
verdict  for  the  vessel.  All  attempts  to  obtain  a  new  trial  and  to  take  an 
appeal  to  higher  courts  were  alike  without  success. 

2Mr.  Snow  makes  the  pertinent  observation  that,  "In  considering  this  ques- 
tion, it  should  be  remembered  that,  by  the  introduction  of  steam  as  the  motive 
power  of  ships,  and  of  iron  and  steel  as  the  material  of  their  construction,  the 
conditions  of  maritime  warfare  have  been  very  radically  changed.  What 
might  have  been  a  reasonable  rule  as  applied  in  the  time  of  sailing  ships, 
might  now,  in  the  age  of  swift  ironclads,  be  intolerably  oppressive.  In  the 
cases  of  the  Santissima  Trinidad,  United  States  v.  Quincy,  and  the  Meteor,  the 
courts  were  dealing  with  small  sailing  vessels,  which  had  been  converted  into  pri- 
vateers, the  possession  of  which  by  one  or  the  other  belligerent  made  very  little 
difference  in  the  general  result  of  the  struggle;  whereas,  the  possession  of  an 
ironclad  ship  might  very  well  turn  the  scale  one  way  or  the  other,  as  indeed 
it  did  in  the  war  between  Chile  and  Peru,  in  1880-1881.  This  great  power 
of  inflicting  injury  upon  one  of  the  belligerents,  it  is  fair  to  say,  ought  not  to 
be  permitted  to  neutral  citizens ;  and  the  neutral  nation  is  alone  in  a  position 
to  restrain  them."  Cases  and  Opinions  on  International  Law,  437.  Scott, 
Cases,  720.    This  point  seems  to  have  been  entirely  overlooked  by  Sir  Alexander 


116  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

of  1794  and  1818,  by  adopting  the  "intent"  of  the  person  fitting  out 
and  arming  the  vessel  as  the  test  of  the  illegality  of  the  act  were  able 
effectively  to  check,  if  not  wholly  prevent,  the  practice  of  privateering. 
But  with  the  disappearance  of  privateering,  and  with  the  changed 
conditions  of  maritime  warfare  as  they  existed  during  the  Civil  War, 
a  new  situation  was  presented.  It  was  no  longer  sufficient  for  the 
neutral  state  to  be  satisfied  that  there  was  no  hostile  intent  on  the  part 
of  those  who  were  fitting  out  or  arming  a  vessel  within  its  jurisdic- 
tion. Even  if  the  intent  of  those  fitting  out  and  arming  the  vessel 
was  a  purely  commercial  one,  it  was  still  necessary  for  the  neutral 
state  to  inquire  into  the  ultimate  destination  of  the  vessel,  into  the  in- 
tent of  those  into  whose  hands  the  vessel  was  to  fall.  By  permitting 
the  mere  mercantile  transfer  by  its  citizens  to  a  belligerent  of  ves- 
sels fitted  out  and  armed  in  its  ports,  a  neutral  state  might  be  giving 
a  tremendous  advantage  to  one  belligerent  over  the  other.  What 
concerned  the  injured  belligerent  was  the  fact  that  his  enemy  left 
the  neutral  port  in  possession  of  a  powerful  instrument  of  war,  thus 
constituting  the  neutral  port  a  point  of  departure  for  a  hostile  expedi- 
tion, irrespective  of  any  hostile  intentions  on  the  part  of  citizens  of 
the  neutral  state.^  The  negotiations  carried  on  with  a  view  to  the 

^Mr.  Mountague  Bernard  explains  lucidly  the  point  of  view  of  the  injured 
belligerent:  "It  is,"  he  saj's,  "equally  clear  that  proof  of  an  intention  hostile 
in  fact,  or  constructively  hostile,  in  the  builder  of  a  ship  or  his  workmen,  or  in 
the  maker  or  purveyor  of  guns  or  ammunition,  has  really  little  or  nothing  to 
do  with  the  question  whether  the  belligerent  nation  has  sustained  injury  from 
the  neutral.  To  the  United  States  it  was  of  no  consequence  at  all  what  were 
the  intentions  of  Laird  or  Miller,  or  their  riggers  or  ship-carpenters,  or 
whether  these  persons  or  any  of  them  were  animated  by  partiality  to  the  Con- 
federates, or  were  merely  working,  in  the  exercise  of  their  respective  trades, 
for  what  they  could  get.  What  was  of  consequence  to  the  United  States  was 
the  intention  with  which  the  vessels  were  despatched  from  England  by  those 
who  had  at  that  time  the  real  control  of  them.  This  unquestionably  was  a 
matter  of  the  highest  consequence,  since  on  this  it  depended  whether  they  were 
more  or  less  dangerous,  or  not  dangerous  at  all,  to  the  American  mercantile 
marine.  Nor  did  it  matter  to  the  United  States  whether  the  vessels  were  pur- 
chased ready-made  or  were  built  to  order."  Historical  Account  of  the  Neutrality 
of  Great  Britain  during  the  American  Civil  War,  396-397. 

This  distinction  was  overlooked  by  Mr.  Dana  who,  writing  in  1866,  based 
his  doctrine  upon  the  old  rule  of  the  "intent"  of  the  person  fitting  out  or 
arming  the  vessel.  "As  to  the  preparing  of  vessels  within  our  jurisdiction  for 
subsequent  hostile  operations,  the  test  we  have  applied  has  not  been  the  ex- 
tent and  character  of  the  preparations,  but  the  intent  with  which  the  par- 
ticular acts  are  done.  If  any  person  does  any  act,  or  attempts  to  do  any 
act,  toward  such  preparation,  with  the  intent  that  the  vessel  shall  be  employed 

Cockburn  in  his  individual  opinion  rendered  as  one  of  the  arbitrators  at  Geneva, 
in  which  he  said  that  he  was  unable  to  see  any  difference  in  principle  between 
"a  ship  of  war  and  any  other  article  of  warlike  use."  Papers  Relating  to  the 
Treaty   of   Washington,  IV,  347. 


DEFICIENCIES  OF  THE   NEUTRALITY  LAWS  117 

settlement  of  the  claims  brought  by  the  United  States  against  Great 
Britain  resulted  in  the  formulation  of  more  progressive  rules  on  this 
point.  In  the  meantime,  however,  the  courts  of  the  United  States 
still  enforced  the  old  rule,  and  the  legislature  was  for  a  time  actively- 
engaged  in  the  preparation  of  a  bill  to  make  it  permanent. 

It  will  be  remembered  that  in  the  case  of  the  Meteor,^  in  1866,  Judge  Opinion  in  case 
Betts  interpreted  the  word  "intent"  in  Sec.  3  of  the  Act  of  1818  in  o^  the  Meteor. 
such  a  way  as  to  annul  practically  the  right  of  citizens  of  the  United 
States  to  sell  armed  vessels  to  a  belligerent;  and  that  this  interpreta- 
tion was  rejected  by  Justice  Nelson  when  the  case  was  appealed  to 
the  Circuit  Court.^  But  while  disagreeing  with  Judge  Betts  on  the 
point  that  knowledge  of  the  probable  use  to  which  the  vessel  was  to  be 
put  constitutes  an  intent  that  it  shall  be  so  used.  Justice  Nelson  made 
the  following  remark  as  to  the  legality  of  building  vessels  to  order. 
"I  agree  that  if  the  agents  of  a  hostile  government  should  make  a 
contract  to  build  a  ship  for  service  in  war,  then  suspicion  would  com- 
mence in  the  origin  of  the  contract,  and  very  slight  circumstances 
might  go  to  make  out  the  purpose  and  the  intent."  This  remark  may 
be  interpreted  as  conceding  the  abstract  right  of  an  American  citizen 
to  build  a  war  vessel  to  the  order  of  a  belligerent  government,  but 
strictly  limiting  the  exercise  of  the  right  to  the  commercial  under- 
taking and  forbidding  the  least  cooperation  with  the  belligerent  in 
the  actual  disposition  of  the  vessel. 

On  July  25th  of  the  same  year  the  Committee  on  Foreign  Relations   Failure  of  bill  to 

of  the  House  of  Representatives  presented  a  new  neutrality  bill  which   P^^™^  sale  of 

vessels 
it  offered  as  a  substitute  for  the  Act  of  1818.^    Sec.  10  of  the  new  bill 

provided  that  nothing  in  the  proposed  act  should  be  so  construed  as 
to  prohibit  citizens  of  the  United  States  from  selling  vessels  built 
within  the  United  States  to  governments  not  at  war  with  the  United 
States.  It  was  fortunate  for  the  United  States  that  this  attempt  on  the 
part  of  the  House  of  Representatives  at  reactionary  legislation  did 
not  receive  the  support  of  the  Senate. 

On   May  8,    1871,  a  treaty  between  the  United   States  and   Great   Treaty    of  Wash- 
Britain  was  signed  at  Washington  providing  for  the  settlement  by  ington,  1871. 

117  Fed.  Cases,  No.  9,498. 

^Ibid.  note.  See  Chap.  Ill,  pp.  70-72. 

2See  Chap.  II,  pp.  48-49. 


in  hostile  operations,  he  is  guilty,  without  reference  to  the  completion  of  the 
preparations,  or  the  extent  to  which  they  may  have  gone."  Wheaton,  Int.  Law 
562. 


118  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

arbitration  of  the  claims  brought  by  the  United  States  against  Great 
Britain  for  indemnity  for  the  losses  incurred  by  the  former  from  Con- 
federate cruisers  which  had  been  built  or  fitted  out  in  British  ports. 
Art.  VI  of  this  treaty  set  forth  the  three  rules  agreed  upon  by  the 
contracting  parties  as  applicable  to  the  settlement  of  the  case.  These 
rules,  commonly  known  as  the  "Three  rules  of  the  Treaty  of  Wash- 
ington," are  as  follows : 

Rules  adopted.  A  neutral  Government  is  bound — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming,  or 
equipping,  within  its  jurisdiction,  of  any  vessel  which  it  has  rea- 
sonable ground  to  believe  is  intended  to  cruise  or  to  carry  on 
war  against  a  Power  with  which  it  is  at  peace ;  and  also  to  use 
like  diligence  to  prevent  the  departure  from  its  jurisdiction  of  any 
vessel  intended  to  cruise  or  carry  on  war  as  above,  such  vessel 
having  been  specially  adapted,  in  whole  or  in  part,  within  such  ju- 
risdiction, to  warlike  use. 

Secondly,  not  to  permit  or  suffer  either  belligerent  to  make 
use  of  its  ports  or  waters  as  the  base  of  naval  operations  against 
the  other,  or  for  the  purpose  of  the  renewal  or  augmentation  of 
military  supplies  or  arms,  or  the  recruitment  of  men. 

Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters, 
and,  as  to  all  persons  within  its  jurisdiction,  to  prevent  any  viola- 
tion of  the  foregoing  obligations  and  duties.^ 

It  was,  however,  expressly  declared  in  the  same  article  that  "Her 
Majesty's  Government  cannot  assent  to  the  foregoing  rules  as  a  state- 
ment of  principles  of  international  law  which  were  in  force  at  the 
time  when  the  claims  mentioned  in  Article  I,  arose,"  but  that  "Her  Ma- 
jesty's Government,  in  order  to  evince  its  desire  of  strengthening  the 
friendly  relations  between  the  two  countries  and  of  making  satisfac- 
tory provision  for  the  future,  agrees  that  in  deciding  the  questions 
between  the  two  countries  arising  out  of  those  claims,  the  Arbitrators 
should  assume  that  Her  Majesty's  Government  had  undertaken  to 
act  upon  the  principles  set  forth  in  these  rules." 
Scope  of  first  rule.  It  is  to  be  observed  that  in  the  first  rule  the  words  "is  intended  to 
cruise  or  to  carry  on  war,"  as  describing  the  use  to  which  the  vessel 
in  question  is  to  be  put,  introduced  a  much  more  comprehensive  rule  as 
to  the  vessels  whose  departure  from  its  ports  a  neutral  government  is 
bound  to  prohibit.  The  new  rule  was  unquestionably  an  advance  over 
the  old  one,  whatever  may  have  been  the  justice  of  Great  Britain's 

iMalloy,  Treaties,  etc.,  Between  the  United  States  and  Other  Powers  (1776- 
1909).  I,  703. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS 


119 


contention  that  it  did  not  represent  international  custom  at  the  time 
when  the  events  which  gave  rise  to  the  complaint  of  the  United  States 
took  place.  Both  Great  Britain  and  the  United  States  agreed  to  ob- 
serve the  three  rules  as  between  themselves  in  the  future  and  to  bring 
them  to  the  knowledge  of  other  maritime  powers  and  to  invite  them  to 
accede  to  them.  Great  Britain  has  incorporated  the  first  of  these 
rules  into  her  Foreign  Enlistment  Act  of  1870,  by  which  it  is  made 
illegal  either  to  build,  or  agree  to  build,  or  cause  to  be  built,  or  issue 
or  deliver  any  commission  for,  or  equip  or  despatch,  or  cause  or 
allow  to  be  despatched,  any  ship  "with  intent  or  knowledge,  or  having 
reasonable  cause  to  believe  that  the  same  shall  or  will  be  employed  in 
the  military  or  naval  service  of  any  foreign  State  at  war  with  any 
friendly  State."^  No  change  was  made  in  the  Neutrality  Act  of  the 
United  States  in  consequence  of  the  new  rules,  and  if  the  occasion 
should  arise  it  would  still  be  necessary  for  the  courts  to  strain  the  old 
"rule  of  intent,"  as  it  appears  in  the  Act  of  1818,  to  meet  the  new 
duties  incumbent  upon  the  United  States. 

Under  the  new  rule  it  is  no  longer  a  question  of  the  intent  of  the 
person  arming  and  equipping  the  vessel  but  of  the  intent  of  those  for 
whom  the  vessel  is  being  so  armed  and  equipped.  In  other  words  the 
probable  destination  or  use  of  the  vessel  is  made  the  test  as  to  whether 
it  should  be  permitted  to  leave  port,  irrespective  of  the  intent  of  the 
ship-builder  or  temporary  owner.  The  old  distinction  between  the 
animus  vendendi  and  the  animus  helligerandi  is  thus  done  away  with. 

The  first  rule  of  the  Treaty  of  Washington  was  adopted  in  substance  its  adoption  by 
by  the  Hague  Conference  of  1907,  and  appears  as  Art.  8  of  the  Con-  Qj^^f^r^e^ce 
vention  relating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Mari- 
time War. 

A  neutral  Government  is  bound  to  employ  the  means  at  its  dis- 
posal to  prevent  the  fitting  out  or  arming  of  any  vessel  within 
its  jurisdiction  which  it  has  reason  to  believe  is  intended  to  cruise, 
or  engage  in  hostile  operations,  against  a  Power  with  which  that 
Government  is  at  peace.  It  is  also  bound  to  display  the  same 
vigilance  to  prevent  the  departure  from  its  jurisdiction  of  any 
vessel  intended  to  cruise,  or  engage  in  hostile  operations,  which 
has  been  adapted  in  whole  or  in  part  within  the  said  jurisdiction 
to  warlike  use. 

It  will  be  observed  that  the  above  article  refers  to  "any  vessel" 
which  the  neutral  government  has  reason  to  believe  is  intended  to 

iSee  below,  p.  135;  App.,  p.  191. 


120  NEUTRALITY   LAWS  OF  THE  UNITED  STATES 

"cruise,  or  engage  in  hostile  operations  against"  a  friendly  power. 
These  words  are  not  as  clear  as  might  be  desired.  They  do  not  define 
specifically  the  status  of  vessels  other  than  war-ships  which  are  used 
in  naval  warfare,  such  as  colliers,  repair  ships  and  other  fleet  auxil- 
iaries, nor  do  they  define  the  status  of  vessels  which  are  constructed 
primarily  for  purposes  of  peace  but  which  are  susceptible  of  being 
readily  converted  into  cruisers  by  the  addition  of  a  small  armament.^ 
Summary  of  The  situation  with  regard  to  the  duties  of  a  neutral  state  in  the 

present  law.  matter  of  the  sale,  by  a  neutral  citizen  to  a  belligerent,  of  vessels  cap- 

able of  being  used  for  warlike  purposes  may  be  summed  up  as  follows : 
Sale  of  vessels  (1)   A  neutral  government  is  bound  by  Art.  8  of  the  Convention  re- 

built to  order.  lating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Maritime  War  to 

prevent  the  construction,-  the  fitting  out,  or  the  arming,  within  its  juris- 
diction, to  the  order  of  a  belligerent,  of  war-ships  (including  armed 
vessels  and  other  craft  constructed  to  take  active  part  in  naval  war- 
fare), and  of  merchant  vessels  which  by  reason  of  their  size  and  speed 
are  readily  convertible  into  light-armed  cruisers.  Accordingly,  it  is 
equally  incumbent  upon  the  neutral  state  to  prevent  the  sale  and  trans- 
fer, within  its  jurisdiction,  of  vessels  thus  built  or  armed  in  violation 

iln  the  case  of  war-ships  and  other  war  craft  which  have,  by  their  nature, 
but  one  use,  the  burden  of  proof  that  the  vessels  under  construction  are  not 
being  built  to  the  order  of  either  belligerent  should  properly  rest  upon  the 
builder,  who  must  show  a  bona  fide  neutral  destination;  and  while  Art.  8 
offers  no  test  of  evidence  of  hostile  destination  it  would  certainly  be  a  wise 
precaution  on  the  part  of  the  neutral  government  to  regard  the  absence  of 
a  contract  with  a  neutral  government  as  sufficient  ground  lor  putting  a  stop 
to  further  acts  of  the  builder.  A  contract  of  the  builder  with  neutral  citi- 
zens would  make  possible  the  transfer  by  the  latter  to  a  belligerent  of  the 
vessel  when  sold.  In  the  case  of  merchant  vessels  a  belligerent  would  nat- 
urally resort  to  intermediary  contracts,  so  that  it  would  be  practically  im- 
possible for  the  neutral  state  to  inquire  into  their  ultimate  destination  in 
order  to  obtain  evidence  of  the  real  persons  for  whom  the  vessel  was  being 
built.  In  this  respect  the  test  offered  by  Art.  8  is  not  satisfactory.  The  guilt 
of  the  vessel  depends  upon  whether  or  not  it  is  "intended"  to  engage  in  hostil- 
ities ;  it  is  well  known  how  difficult  it  is  to  prove  what  is  "intended"  and  how 
many  international  controversies  may  arise  regarding  it.  Mr.  Hall,  in  dis- 
cussing this  point,  suggests  that  instead  of  the  "intent"  of  the  parties  involved 
the  cliaracter  of  the  ship  should  be  made  the  test  as  to  whether  it  should  be 
permitted  to  leave  port.  The  test  would  unquestionably  be  an  improvement 
as  an  alternative  to  the  present  one,  but  it  is  thought  that  both  tests  ma^^  be 
combined,  and  thus  more  comprehensive  measures  of  prevention  be  provided. 
See  below,  p.  138. 

2In  the  Case  of  the  United  States  before  the  Tribunal  of  Arbitration  at 
Geneva,  it  was  argued  on  behalf  of  the  United  States  that  the  construction  of 
a  vessel  in  neutral  territory  during  time  of  war  had  been  regarded  both  by  the 
courts  and  by  the  Executive  as  included  in  the  act  of  fitting  out  the  vessel. 
In  support  of  this  position  the  counsel  referred  to  the  case  of  United  States 
V.  Quincy,  6  Pet.,  445,  and  to  the  action  of  the  President  in  1869  in  taking 
possession  of  certain  vessels  which  were  being  constructed  for  the  Spanish 
government.    Papers  Relating  to  the  Treaty  of  Washington,  I,  68. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS  121 

of  its  obligations  as  a  neutral.  In  this  case  the  contract  of  the  bellig- 
erent with  the  builder  and  the  existence  of  the  war  may  be  taken  as 
"reasonable  ground"  of  the  intended  hostile  destination  of  the  vessel.^ 

(2)   In  passing  upon  the  lawfulness  of  the  sale  of  the  above  men-   Sale  of  vessels 
tioned  vessels  when  already  constructed  and  when  not  built  or  fitted  ^^  o"der!    ^*  ^ 
out  to  the  order  of  a  belligerent,  a  distinction  must  be  made  between 
the  several  classes  of  vessels : 

(a)   A  neutral  government  is  bound  to  prohibit  the  sale  within  Within  neutral 
its  jurisdiction  of  armed  vessels  and  of  unarmed  vessels  constructed  ^""^  iction. 
primarily  for  use  in  war.    This  obligation  is  deducible  from  the  general 
principles  of  neutral  duty  as  at  present  understood.     A  neutral  coun- 
try must  not  be  made  the  point  of  departure  for  hostile  expeditions 
by  land  or  sea.^     Now  a  vessel  of  war,  whether  its  armament  be  in 
a  greater  or  less  state  of  completion,  or  even  if  it  carry  no  larger  crew 
than  is  necessary  to  navigate  it,  is  nevertheless  a  powerful  instrument 
of  war.     Its  departure  under  a  belligerent  flag  might  be  a  much  more 
serious  matter  for  the  other  belligerent  than  the  departure  of  an  armed 
expedition  of  men;  it  would  amount  in  many  cases  to  "organized 
war."^    This  is  equally  true  even  if  no  transfer  of  ownership  has  taken 
place  in  the  neutral  port,  and  the  vessel  has  sailed  out  under  a  neutral 

lAt  the  Second  Hague  Conference,  during  the  discussions  of  the  committee 
entrusted  with  the  formulation  of  the  Convention  relating  to  the  Rights  and 
Duties  of  Neutral  Powers  in  Maritime  War,  the  BraziHan  delegate  proposed 
to  insert  an  article  providing  that  "ships  of  war  in  course  of  construction  in 
the  shipyards  of  a  neutral  country  may  be  delivered  with  all  their  armament 
to  the  officers  and  to  the  crews  appointed  to  receive  them,  when  they  have 
been  ordered  more  than  six  months  before  the  declaration  of  war."  The  pro- 
posal was  opposed  by  the  Argentine  delegate  and  was  rejected  by  the  Examin- 
ing Committee.  Deuxieme  Conference  de  la  Paix,  Actes  et  Documents,  I,  302; 
III,  597. 

On  the  outbreak  of  the  Spanish-American  war  two  ships  which  were  being 
built  in  English  shipyards  for  the  United  States  were  prevented  by  the  British 
government  from  leaving  the  country.  Moore,  Int.  Law  Digest,  VII,  861. 

-This  principle  appears  to  be  expressed  in  the  second  rule  of  the  Treaty  of 
Washington  that  a  neutral  state  is  bound  "not  to  permit  or  suffer  either  belliger- 
ent to  make  use  of  its  ports  or  waters  as  the  base  of  naval  operations  against 
the  other."  It  is  true  that  the  ordinary  acceptation  of  the  term  "base  of  naval 
operations"  would  seem  to  limit  it  to  a  place  to  which  a  belligerent  resorts 
frequently  for  the  renewal  of  supplies;  but  the  term  is  likewise  understood 
at  the  present  day  as  including  ,a  place  from  which  an  act  of  hostility  takes 
its  commencement.  Hall,  599-600;  Walker,  The  Science  of  Int.  Law,  453.  By 
Art.  5  of  the  Convention  relating  to  the  Rights  and  Duties  of  Neutral  Powers 
in  Maritime  War,  the  obligation  laid  down  in  the  second  rule  of  the  Treaty 
of  Washington  of  not  permitting  a  neutral  port  to  become  the  base  of  hostile 
operations  was  transferred  from  the  neutral  state  to  the  belligerent  states.  But 
It  IS  fair  to  infer  that  what  a  belligerent  is  forbidden  to  do,  a  neutral  may 
not  help  him  to  do. 

^The  expression  occurs  in  the  Case  of  the  United  States  presented  to  the 
Tribunal  of  Arbitration  at  Geneva.  Papers  Relating  to  the  Treaty  of  Wash- 
ington, I,  81. 


122  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

flag  with  a  contract  of  delivery  either  on  the  high  seas  or  in  a  port  of 
the  belligerent  ;^  and  accordingly  it  would  seem  that  a  neutral  govern- 
ment is  bound  to  prevent  the  departure  from  its  ports  of  an  armed 
vessel  under  such  conditions  of  prearranged  sale  and  delivery.  It  may 
also  be  said  that  the  sale  of  armed  vessels  is  forbidden  by  inference 
from  both  the  first  and  the  second  paragraphs  of  Art.  8  of  the  Con- 
vention relating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Mari- 
time War;  for  why  prevent  the  fitting  out  and  arming  of  a  vessel,  or 
the  adaptation  of  a  merchant  vessel  to  warlike  use,  even  when  the 
object  of  the  persons  doing  so  is  a  purely  commercial  one,  if  a  vessel 
already  built  and  fitted  out  may  be  sold  in  a  neutral  port? 

It  may  be  observed,  however,  that  by  reason  of  the  changed  condi- 
tions of  modern  naval  warfare,  the  sale  of  armed  vessels  already  con- 
structed and  not  fitted  out  to  the  order  of  a  belligerent  has  become, 
in  the  case  of  war-ships^  a  question  of  little  more  than  academic  in- 
terest. The  construction  of  a  war-ship  entails  so  great  an  outlay  of 
capital  that  it  is  not  probable  that  a  builder  would  construct  one  ex- 
cept under  contract,  and  accordingly,  he  would  not  have  a  ready-built 
war-ship  on  hand  for  sale  unless  by  reason  of  a  rescission  of  contract 
on  the  part  of  some  neutral  state. 
Outside  neutral  (b)   ^  neutral  government  is  not  bound  to  prohibit  the  export 

jurisdiction.  of  armed  vessels  and  of  unarmed  vessels  constructed  primarily  for  use 

in  war  when  they  have  not  been  built  to  the  order  of  a  belligerent, 
and  when  there  is  no  prearranged  contract  of  delivery  to  a  belliger- 
ent either  on  the  high  seas  or  in  a  port  of  the  belligerent.  This  is  all 
that  was  asserted  by  Justice  Story  in  the  oft-quoted  and  much  crit- 
icised dictum  from  his  opinion  rendered  in  the  case  of  the  Santissima 
Trinidad."^     The  proposition  was  made  with  reference  to  a  case  not 

^During  the  American  Civil  War  it  was  clearly  shown  that,  though  difficult, 
it  was  not  impracticable  for  a  belligerent  who  had  purchased  a  vessel  in  a  neu- 
tral port  to  meet  the  vessel  at  an  appointed  place  outside  the  neutral  jurisdiction 
and  then  transship  to  it  the  rest  of  its  armament  and  its  fighting  crew,  so 
that  the  neutral  port  was  thus  made  practically  the  starting  point  of  a  hostile 
expedition. 

-7  Wheat.  283.  "There  is  nothing  in  our  laws,  or  in  the  law  of  nations,  that 
forbids  our  citizens  from  sending  armed  vessels,  as  well  as  munitions  of  war, 
to  foreign  ports  for  sale.  It  is  a  commercial  adventure  which  no  nation  is 
bound  to  prohibit;  and  which  only  exposes  the  persons  engaged  in  it  to  the 
penalty  of  confiscation." 

As  an  abstract  proposition,  and  within  the  limits  it  contains,  this  dictum  is 
still  good  law,  but  it  has  been  persistently  misinterpreted.  The  limits  of  the 
proposition  were  carefully  explained  in  the  Case  of  the  United  States  pre- 
sented to  the  Tribunal  of  Arbitration  at  Geneva.  Papers  Relating  to  the 
Treaty  of  Washington,  I,  82.  Sir  Alexander  Cockburn  quoted  it  in  his  opinion 
without  observing  the  narrowness  of  its  scope.  Ibid,  IV,  251.  Oppenheim 
refers  to  it  as  supporting  the  right  to  sell  and  deliver  armed  vessels  in  a  neutral 
as  well  as  in  a  belligerent  port.     Int.  Law,  II,  405. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS 


123 


chant  vessels. 


likely  to  arise  even  at  that  time,  and  wholly  imaginary  under  present 
conditions.  In  the  first  place,  as  has  been  pointed  out  above,  war- 
ships are  invariably  built  under  contract,  and  in  the  second  place,  if 
we  can  imagine  the  owner  of  a  merchant  vessel  fitting  out  and  arming 
a  vessel  within  neutral  jurisdiction  for  use  as  a  light-armed  cruiser 
without  a  contract  for  the  same,  on  the  chance  of  finding  a  good 
market  for  the  vessel  in  a  belligerent  port,  we  cannot  imagine  the 
neutral  state  permitting  the  departure  of  such  armed  vessel  from  its 
ports  without  requiring  such  proof  and  security  that  there  is  no  pre- 
arranged sale  with  delivery  on  the  high  seas  or  in  a  port  of  the  bel- 
ligerent, as  would  make  the  design  of  the  owner  illusory  from  a 
commercial  point  of  view. 

(c)  A  neutral  government  is  not  bound  to  prevent  the  sale  Sale  of  mer- 
within  its  jurisdiction  to  a  belligerent  of  unarmed  merchant  vessels, 
even  though,  by  reason  of  their  size  and  swiftness,  they  are  capable  of 
being  transformed  into  light-armed  cruisers  or  of  being  used  as  aux- 
iliaries in  the  service  of  the  belligerent  fleet;  provided,  however,  that 
such  merchant  vessels  do  not  undergo  in  the  neutral  port  any  changes 
of  a  character  to  adapt  them  to  be  used  in  war.  It  remains,  however, 
a  duty  for  the  neutral  state  to  draw  the  line  between  simple  commer- 
cial vessels  and  such  others  as,  by  reason  of  armor  plates  and  other 
equipments  for  war,  are  really  armed  vessels  although  not  actually 
carrying  guns.^ 

Just  as  a  neutral  state  is  under  no  obligation  to  prevent  commerce  Blockade  running 
in  contraband  from  being  carried  on  by  its  citizens,  so  it  is  under  no  neutraUty  laws, 
obligation  to  prevent  the  building  of  blockade  runners  by  its  citizens 
and  the  employment  of  them  in  time  of  war.  Here  again  the  ab- 
sence of  an  obligation  is  based  upon  the  fact  that  it  would  impose 
too  heavy  a  burden  upon  a  neutral  state  to  require  it  to  prevent  such 
acts  on  the  part  of  its  citizens.  During  the  American  Civil  War  the 
business  of  running  the  blockade  of  the  southern  ports  became  a 
very  profitable  one,  and  a  number  of  ships  were  built  and  fitted  out 
in  Great  Britain  with  that  object  in  view.  The  British  port  of  Nas- 
sau, in  the  Bahamas,  became  the  center  of  the  contraband  trade  and 
the  point  of  departure  for  blockade  runners.  The  United  States  pro- 
tested to  Great  Britain  against  the  systematic  manner  in  which  Brit- 

^See  below,  p.  140. 

The  apparent  inconsistency  of  permitting  a  merchant  vessel  to  be  sold  to  a 
belligerent  in  a  neutral  port  when  the  same  vessel  may  not  be  built  to  the  order 
of  a  belligerent,  while  due  to  the  obscure  phrasing  of  Art.  8  of  the  Convention 
relating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Maritime  War,  has 
something  to  be  said  in  its  favor.    See  below,  p.  140. 


124  NEUTRALITY  LAWS  OF  THE   UNITED   STATES 

ish  capital  and  British  ships  were  being  used  to  break  the  blockade 
of  the  southern  states.  In  reply,  Earl  Russell  maintained  that  the 
British  Foreign  Enlistment  Act  of  1819  did  not  apply  to  the  act  of 
carrying  contraband  or  breaking  blockade ;  that  the  law  of  nations 
had  not  imposed  upon  neutral  states  the  duty  of  preventing  such  acts, 
but  had  left  it  to  the  injured  belligerent  to  apply  the  remedy  of  cap- 
ture and  confiscation  of  the  cargo  of  the  offending  vessel/  In  com- 
menting upon  the  reply  of  Earl  Russell,  Mr.  Mountague  Bernard 
pointedly  remarks  that  "the  test  of  a  valid  blockade  lies  in  its  effective- 
ness ;  and  this  depends  on  the  force  which  the  belligerent  is  able  to  con- 
centrate on  the  blockaded  port,  and  the  vigilance  and  impartiality  with 
which  he  uses  it.  If  it  be  eluded  and  set  at  naught,  he  has  only  him- 
self to  blame.  But  give  him  a  right  to  call  on  the  neutral  to  protect 
him  by  punishing  blockade  running  as  a  crime,  and  he  is  practically 
relieved  from  the  necessity  of  protecting  himself."^ 
Loans  of  money.  A  neutral  state  is,  moreover,  under  no  obligation  to  prevent  its 

citizens  from  making  loans  of  money  to  a  belligerent  power.  The 
neutral  state  cannot  itself  make  such  a  loan  even  on  a  purely  com- 
mercial basis,  nor  can  it  guarantee  a  loan  made  by  one  of  its  citi- 
zens.^ But,  while  it  cannot  thus  give  either  its  material  or  its  moral 
support  to  a  belligerent,  it  is  not  obliged  to  prevent  its  subjects  from 
giving  such  support  as  an  incident  of  ordinary  mercantile  transac- 
tions.* In  1842,  Webster,  as  Secretary  of  State,  emphatically  denied 

^For.  Rel.,  1862,  93;  Moore,  Int.  Law  Digest,  VII,  975. 

-Historical  Account  of  the  Neutrality  of  Great  Britain  During  the  American 
Civil  War,  298. 

3See  Moore,  Int.  Law  Digest,  VII,  798;  Wharton,  Int.  Law  Digest,  III,  507. 
In  the  case  of  De  Wilts  v.  Hendricks  (9  Moore,  C.  P.,  586),  decided  in  1824,  it 
was  held  in  the  British  Court  of  Common  Pleas  that  an  engagement  to  raise 
money,  by  way  of  loan,  for  the  purpose  of  supporting  insurgents  against  a 
foreign  government  was  contrary  to  the  law  of  nations,  and  consequently  no 
right  of  action  could  arise  out  of  such  a  transaction.     Scott's  Cases,  721. 

In  connection  with  this  subject  Moore  makes  the  following  pertinent  sugges- 
tions :  "In  the  war  between  Great  Britain  and  the  South  African  Republics  loans 
were  openly  negotiated  for  the  British  Government  in  the  United  States  and  else- 
where, and  the  same  thing  has  taken  place  in  the  war  between  Russia  and 
Japan.  We  cannot  too  constantly  bear  in  mind  the  fact  that  in  dealing  with 
the  question  of  'unlawfulness'  in  matters  cf  neutrality,  a  distinction  must  be 
drawn  between  what  is  unneutral  in  a  general  sense  and  what  is  unneutral  in 
the  sense  of  being  criminally  punishable  under  the  neutrality  laws,  and  that, 
while  a  neutral  government  is  not  bound  to  prevent  all  unneutral  acts,  it  must 
itself  refrain  from  engaging  in  them,  and  that,  as  a  consequence  of  this  duty 
of  abstention,  it  may  well  be  that  its  courts  should  not  lend  their  processes  for 
the  purpose  of  enforcing  transactions  which,  although  they  may  not  be  penally 
preventable,  may  be  in  their  essence  unneutral."     Op.  Cit.,  VII,  978. 

*Hall  justly  observes:  "Money  is,  in  theory  and  in  fact,  an  article  of  com- 
merce in  the  fullest  sense  of  the  word.  To  throw  upon  neutral  governments 
the  obligation  of  controlling  dealings  not  taking  place  within  their  territories 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS  125 

the  existence  of  a  duty  on  the  part  of  the  United  States  to  restrain 
loans  made  by  individuals  to  the  government  of  Texas,  then  at  war 
with  Mexico.^  In  1885,  Mr.  Bayard,  Secretary  of  State,  in  reply  to 
complaints  of  the  Spanish  minister  that  lottery  tickets  were  being 
sold  at  Key  West  for  the  promotion  of  filibustering,  said  that  it  was 
not  "a  principle  of  international  law  that  a  sovereign  is  bound  in 
any  sense  to  prohibit  sales  of  any  kind,  on  the  ground  that  the  pro- 
ceeds might  go  to  unlawful  objects."^ 

Whether  voluntary  subscriptions  by  individuals  of  a  neutral  state  Voluntary  sub- 
for  the  use  of  a  belligerent  must  be  prevented  by  the  neutral  state  is  s^"P*'°"s- 
not  a  matter  of  settled  law  or  custom.  Such  subscriptions  are  un- 
doubtedly inconsistent  with  the  principle  of  neutrality,  for  they  con- 
stitute very  important  assistance  to  the  belligerent  to  whom  they  are 
given,  and  they  are  even  more  unneutral  in  character  than  commerce 
in  contraband,  in  that  there  is  lacking  the  element  of  a  mercantile 
transaction.  But  it  is  difficult  to  see  how  a  neutral  state  could  fairly 
be  charged  with  responsibility  for  such  subscriptions,  since  it  would 
be  practically  impossible  to  prevent  them  from  being  made,  owing 
to  the  facility  with  which  money  can  be  transferred  at  the  present  day.^ 

A  neutral  state  is  under  no  obligation  to  prevent  its  subjects  from  Expressions  of 
giving  expression  to  opinions  or  criticisms  or  wishes  hostile  to  either  °P'"'° 
of  two  belligerents,  or  favorable  to  subjects  in  revolt  against  an  exist- 
ing government.  It  is  only  when  such  expressions  of  a  hostile  attitude 
are  followed  up  by  the  commission  of  overt  acts  that  the  prohibitions 
of  a  neutrality  code  can  be  made  to  operate.  Unquestionable  as  this 
principle  would  seem  to  be,  it  is  reaffirmed  here  owing  to  the  fact 
that  on  several  occasions  the  United  States  government  has  been 
called  upon  by  foreign  governments  to  restrict  the  right  of  free  speech 
which  citizens  of  the  United  States  have  under  the  Constitution.^ 

iSee  Hall,  Int.  Law,  591. 

^For.  Rel,  1885,  771. 

3In  1823  the  law  officers  of  the  Crown  advised  the  British  government  that 
subscriptions  by  individuals  of  a  neutral  nation  for  the  use  of  a  belligerent 
state  were  inconsistent  with  neutrality  and  contrary  to  the  law  of  nations,  al- 
though they  might  not  constitute  a  just  ground  for  hostilities.  Halleck,  Int. 
Law  (3rd  ed.  by  Baker),  II,  164-165.  This  somewhat  inconsistent  opinion  was 
based  not  upon  practice  but  upon  theory.  See  also  Hershey,  International  Law 
and  Diplomacy  of  the  Russo-Japanese  War,  80-86. 

*In  1816  Mr.  Monroe  refused  to  take  action  at  the  request  of  the  French 
minister  to  have  dismissed  a  postmaster,  who  at  a  public  dinner  had  made 
statements   considered   disrespectful   to  the  French  government.    See  Wharton, 

would  be  to  set  up  a  solitary  exception  to  the  fundamental  rule  that  states  are 
not  responsible  for  the  commercial  acts  of  their  subjects."  Op.  Cit.,  590-591. 
See  also  Lawrence,  Principles  of  Int.  Law,  521-524. 


126 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Enlistments  out- 
side neutral  juris- 
diction. 


With  respect  to  enlistments  of  neutral  citizens  in  the  service  of  a 
belligerent,  it  is  a  well-established  principle  that  a  neutral  state  is  not 
obliged  to  prevent  its  individual  citizens  from  leaving  the  country  with 
intent  to  enlist  in  the  service  of  a  belligerent  when  they  arrive  abroad. 
If  the  individuals  thus  leaving  their  country  have  already  enlisted  or 
entered  into  a  contract  to  enlist,  the  neutral  state  would  of  course  be 
bound  to  take  action  to  prevent  their  departure.^  So  also  the  neutral 
state  must  prevent  their  departure  in  case  they  have  organized  to  such 
an  extent  as  to  constitute  a  military  expedition.^  But  with  this  excep- 
tion, neutral  citizens  are  free  to  take  up  the  cause  of  either  belligerent 
without  thereby  compromising  the  neutrality  of  their  state.  Here 
again,  the  smallness  of  the  injury  done  and  the  impossibility  of  pre- 
venting the  acts  in  question  is  sufficient  ground  for  releasing  the  neu- 
tral state  from  responsibility.  The  absence  of  an  obligation  to  prevent 
its  citizens  from  enlisting  in  the  service  of  a  belligerent  has  been 
affirmed  by  the  United  States  government  from  the  very  beginning 
of  the  republic.^  Art.  6  of  the  Hague  Convention  relative  to  the 
Rights  and  Duties  of  Neutral  Powers  and  Persons  in  War  on  Land 
embodies  an  international  agreement  to  the  same  effect  in  the  follow- 

iSee  Chap.  Ill,  p.  62. 

2See  Chap.  Ill,  p.  84.  In  1870,  during  the  Franco-German  war,  nearly 
twelve  hundred  Frenchmen  left  New  York  in  two  French  ships  for  the  pur- 
pose of  entering  the  French  army.  They  were  not  officered  or  in  any  way 
organized;  but  the  vessels  carried  large  stores  of  rifles  and  ammunition.  The 
Secretary  of  State  of  the  United  States  contended  that  the  ships  could  not  be 
looked  upon  as  intended  to  be  used  for  hostile  purposes  against  Germany,  the 
men  not  being  in  an  efficient  state  of  organization.  Hall  thinks  that  "there  can 
be  no  doubt  that  the  view  taken  by  the  Government  of  the  United  States  was 
correct."     Op.  Cit.,  603. 

3ln  1793,  Jeflferson,  then  Secretary  of  State,  replied  to  the  French  minister 
that  the  government  of  the  United  States  will  not,  at  the  request  of  a  for- 
eign government,  intervene  to  prevent  the  transit  to  the  country  of  the  latter  of 
persons  objectionable  to  it,  unless  they  form  part  of  a  hostile  expedition. 
Moore,  Op.  Cit.,  VII,  917.  In  1855.  in  the  case  of  the  United  States  v.  Hertz 
(26  Fed.  Cases,  15,357),  the  court  held  that  it  was  not  an  offense  against  the 
neutrality  laws  of  the  United  States  for  a  citizen  to  leave  the  country  with 
intent  to  enlist  in  foreign  military  service,  and  the  same  principle  is  reaffirmed 
in  numerous  later  cases. 

Int.  Law  Digest,  III,  505;  Moore,  Int.  Law  Digest,  VII,  979.  In  1866  Mr. 
Seward  refused  to  take  action  at  the  request  of  Great  Britain  to  check  the  pro- 
ceedings of  Fenian  agitators  "as  long  as  they  confine  themselves  within  those 
limits  of  moral  agitation  which  are  recognized  as  legitimate,  equally  by  the  laws 
of  the  United  States  and  by  those  of  Great  Britain."  Wharton,  III,  507.  In 
1885  Mr.  Bayard,  in  answer  to  complaints  of  the  Spanish  minister,  stated  that 
"the  Executive  of  the  United  States  has  no  authority  to  take  cognizance  of  indi- 
vidual opinions  and  the  manifestation  thereof,  even  when  taking  the  shape  of 
revolutionary  and  seditious  expressions  directed  against  our  own  Govern- 
ment." and  that  it  was  "no  less  incompetent  to  pass  upon  the  subversive  char- 
acter of  utterances  alleged  to  contravene  the  laws  of  another  land."  Moore, 
VII,  981. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS  127 

ing  terms:  "A  neutral  Power  incurs  no  responsibility  from  the  fact 
that  individuals  cross  the  frontier  singly  for  the  purpose  of  placing 
themselves  at  the  service  of  one  of  the  belligerents." 

If  it  is  not  a  criminal  offense  against  the  neutrality  laws  of  the  Solicitation  of  en- 
United  States  for  individual  citizens  to  leave  the  country  with  intent  listments  abroad. 
to  enlist  in  the  service  of  a  foreign  belligerent,  so  it  can  be  no  offense 
against  those  laws  if  persons  solicit  others  to  leave  the  country  with 
that  intent.  Such  solicitation  could  not  be  forbidden  without  impair- 
ing the  liberty  of  speech  guaranteed  by  the  constitution  of  the  United 
States.^ 

Moreover,  it  has  been  held  by  the  United  States  courts  that  it  is  no  Transportation  of 
offense  against  the  neutrality  laws  of  the  United  States  to  transport  persons, 
persons  intending  to  enlist  in  foreign  military  service,  and  land  them 
in  the  foreign  country,  provided  they  do  not  constitute  a  military  ex- 
pedition within  the  terms  of  Revised  Statutes,  Sec.  5286 ;-  and  it  would 
seem  that  there  is  no  international  obligation  on  the  part  of  a  neutral 
state  to  prevent  the  departure  of  such  a  vessel.  It  has  also  been  held 
that  persons  desiring  to  enlist  in  foreign  military  service  may  even 
charter  a  vessel  to  convey  them  in  common  to  the  belligerent  country, 
without  violating  the  laws  of  the  United  States.^  In  this  latter  re- 
spect the  neutrality  laws  of  the  United  States  may  not  seem  to  be  in 
harmony  with  the  general  principles  of  neutral  duty;  but  it  would  be 
difficult  to  meet  this  particular  case  without  taking  the  further  step  of 
prohibiting  the  departure  of  even  single  individuals.* 

Whether  a  neutral  state  would  be  obliged  to  take  action  if  its  sub-  Departure  of 
jects  should  depart  to  enter  the  service  of  a  belligerent,  either  col-  ^^^^^  ""™  ^^^' 
lectively  or  singly,  in  such  large  numbers  as  to  constitute  an  important 
addition  to  the  belligerent  force,  is  not  a  matter  of  settled  law.  Here 
the  principle  of  exemption  from  responsibility  because  of  the  small- 
ness  of  the  injury  does  not  apply,  nor  would  it  be  impossible  for  the 
state  to  check  the  exodus  of  large  numbers.^     But  the  difficulty  of 

lit  is  probable,  however,  that  solicitation,  if  carried  to  any  great  extent, 
would  result  in  some  form  of  organization  among  those  so  influenced,  con- 
trary to  the  provisions  of  Art.  4  of  the  Convention  respecting  the  Rights  and 
Duties  of  Neutral  Powers  and  Persons  in  War  on  Land,  up  to  the  standard 
of  which  it  is  desirable  to  bring  the  neutrality  laws  of  the  United  States.  See 
"below,  p.  130. 

^United  States  v.  Kacinski,  26  Fed.  Cases,  15,508;  United  States  v.  O'Brien, 
75  Fed.  Rep.,  500. 

^United  States  v.  O'Brien,  75  Fed.  Rep.,  500. 

*For  a  discussion  of  the  advisability  of  such  a  step,  see  below,  pp.  129-131. 

^Lawrcjice  thinks  that  Russia  was  guilty  of  a  breach  of  neutrality  towards 
Turkey  in  1876  for  having  made  no  effort  to  restrain  the  "thousands  of  en- 


128  NEUTRALITY    LAWS    OF    THE    UNITED    STATES 

framing  permanent  legislation  to  meet  the  situation,  as  well  as  the 
small  probability  of  such  a  situation  arising,  make  it  seem  wiser  not 
to  attempt  to  extend  the  United  States  neutrality  laws  into  that  field, 
but  to  leave  it  to  Congress  to  take  proper  action  according  to  the 
circumstances. 
Provisions  of  The  British  Foreign  Enlistment  Act  of  1870,  like  its  predecessor  of 

1819,  is  generally  regarded  as  imposing,  on  the  point  of  foreign  enlist- 
ment, heavier  restrictions  on  British  subjects  than  are  necessary  to 
meet  the  requirements  of  international  law.^  By  the  Act  of  1819^ 
it  was  declared  to  be  a  misdemeanor  "if  any  natural-born  subject  of 
His  Majesty  shall,  without  such  leave  and  license  as  aforesaid,  engage, 
contract,  or  agree  to  go,  or  shall  go  to  any  foreign  state,  .  .  . 
with  an  intent  or  in  order  to  enlist  or  enter  himself  to  serve,  or  with 
intent  to  serve  in  any  warlike  or  military  operation  whatever  .  .  ." 
By  the  Act  of  1870^  it  is  an  offense  against  the  Act  "if  any  person, 
without  the  license  of  Her  Majesty,  being  a  British  subject,  quits  or 
goes  on  board  any  ship  with  a  view  of  quitting  Her  Majesty's  do- 
minions, with  intent  to  accept  any  commission  or  engagement  in  the 
military  or  naval  service  of  any  foreign  state  at  war  with  a  friendly 
state     .     .     ." 

Thus  the  mere  act  of  leaving  the  country  with  intent  to  enlist  abroad 
is  made  an  offense  against  the  laws  of  Great  Britain.*  It  must  be 
observed,  however,  that,  while  attempting  to  prevent  enlistments  out- 
side the  jurisdiction  of  the  country,  the  British  Foreign  Enlistment 
Acts  of  1819  and  1870  are,  in  respect  to  the  persons  to  whom  they 
apply,  narrower  than  the  United  States  Neutrality  Act  of  1818.^  The 
British  Act  of  1819  applied,  as  regards  the  offense  of  enlisting,  only  to 

^See  Walker,  The  Science  of  International  Law,  446. 

2See  App.,  p.  184.  The  Act  of  1819  was  frequently  referred  to  by  British 
statesmen  as  being  "bottomed  upon"  the  American  Act  of  1818.  Papers  Re- 
lating to  the  Treaty  of  Washington,  I,  244. 

3See  App.,  p.  191. 

*The  provision  has,  it  appears,  never  been  carried  into  effect.  In  1868  Baron 
Bramweii  stated,  with  reference  to  that  clause  of  the  Foreign  Enlistment  Act 
of  1819,  that  "the  present  enactment  is  uselessly  extensive.  It  is  true  that  no 
mischief  has  come  of  it,  because  it  has  been  a  dead  letter,  though  repeatedly 
violated."     Report  of  the  British  Neutrality  Laws  Commission,  No.  70. 

5The  United  States  Act  of  1818  forbids  "any  person,"  whether  native  or 
alien,  from  enlisting  within  the  jurisdiction  of  the  United  States  in  the  service 
of  a  foreign  state.  See  Chap.  Ill,  p.  62.  Mr.  Bemis  points  out  the  serious 
consequences  during  the  American  Civil  War  of  the  absence  of  such  a  pro- 
vision from  the  British  act.     Bemis,  American  Neutrality,  69. 

thusiastic  Russian  volunteers,"  who  crossed  the  southern  borders  of  Russia  in 
order  to  join  the  Servian  army,  then  at  war  with  Turkey.  Principles  of  Int. 
Law,  533. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS  129 

natural-born  subjects,  and  the  Act  of  1870  only  to  British  subjects,  so 
that  there  is  no  law  against  enlistments  even  within  the  country  by 
aliens  domiciled  or  otherwise  resident  in  Great  Britain. 

The  British  Act  of  1870,  like  that  of  1819,  makes  it  unlawful  for  Advisability  of  _ 
the  master  or  owner  of  a  ship  knowingly  to  take  on  board,  or  engage  fgh'^rul'e! 
to  take  on  board,  or  have  on  board  British  subjects  who  are  quitting 
the  country  with  intent  to  enlist  in  foreign  military  or  naval  service. 
This  provision,  while  a  natural  complement  of  the  provision  pro- 
hibiting subjects  from  leaving  the  country  with  intent  to  enlist  abroad, 
is,  like  it,  in  excess  of  the  requirements  of  international  law.  Whether 
the  adoption  by  other  nations  of  the  severe  restrictions  of  the  British 
Act  of  1870  in  the  matter  of  foreign  enlistment,  thereby  introducing 
a  new  rule  of  international  law,  would  be  an  improvement  in  the 
standard  of  neutral  obligations  is  open  to  serious  doubt.  Art.  6  of  the 
Convention  respecting  the  Rights  and  Duties  of  Neutral  Powers  and 
Persons  in  War  on  Land  embodies  the  existing  rule  that  neutral  pow- 
ers incur  no  responsibility  from  the  fact  that  individuals  cross  the 
frontier  singly  to  enter  the  service  of  a  belligerent.  This  article  was 
based  upon  an  article  of  a  French  draft  presented  to  the  commis- 
sion of  the  Second  Hague  Conference  entrusted  with  the  subject  of  Debates  at  Hague 

C  on Tf^rdicf*  Or 

neutral  rights  and  duties.^  In  explaining  the  draft  the  French  dele-  19Q7 
gate  said  that  it  contained  "only  provisions  generally  accepted  by 
jurists  and  consecrated  by  usage."^  Similar  drafts  were  presented  by 
the  Swiss  and  Belgian  delegates.  The  German  delegate  opposed  the 
French  proposition  on  the  point  in  question  and  offered  the  following 
amendment  in  precisely  the  opposite  sense:  "Neutral  Powers  are 
bound  to  prevent  persons  under  their  jurisdiction  from  engaging  to 
perform  military  service  in  the  armed  forces  of  either  of  the  belliger- 
ent parties."^  This  amendment  received  the  support  of  Austria  and 
Turkey,  but  was  opposed  by  France,  Belgium,  Switzerland,  Holland, 
Russia,  and  Haiti  ;*  and  it  was  accordingly  abandoned.  In  proposing 
it  the  German  delegation  explained  that  there  was  "no  question  of 
imposing  upon  the  neutral  state  the  duty  of  controlling  the  intentions 
of  each  individual  crossing  the  frontier.  But  the  case  can  be  imagined 
in  which  thousands  of  volunteers  might  come  from  the  neutral  state  to 
join  the  ranks  of  one  of  the  belligerents."  The  Swiss  delegate  replied 
that  the  great  fault  of  the  German  amendment  was  that  it  could  not 

'^Deuxieme  Conference  de  la  Paix,  Actes  et  Documents,  III,  256. 

^Ibid.    180. 

^Ibid. 

*lbid.    200-204. 


130  NEUTRALITY  LAWS  OF  THE  UNITED   STATES 

be  made  effective.  "We  cannot,"  he  said,  "ask  a  state  to  issue  a  pro- 
hibition which  is  without  any  real  sanction  and  which,  if  not  observed, 
would  compromise  its  authority."^  The  British  delegate  admitted  that 
the  German  proposal  was  in  accordance  with  British  municipal  law, 
but  thought  that  "it  was  not  proper  to  formulate  a  conventional  obliga- 
tion in  that  respect."  "A  prohibition  of  this  kind,"  he  said,  "may 
properly  emanate  from  the  sovereign  authority  of  the  state,  but  not 
from  agreements  forming  part  of  international  law."^  M.  Bourgeois 
of  the  French  delegation  concluded  the  discussion  by  observing  that : 
"What  Germany  wants  above  all  is  that  the  subjects  of  the  neutral 
state  shall  not  be  allowed  to  cross  its  frontiers  en  masse  in  order  to 
put  themselves  at  the  service  of  one  of  the  belligerents.  Does  the 
German  delegation  think  that  such  a  contingency  could  be  realized 
without  the  neutral  state  being  in  complicity  with  that  gathering  en 
masse?  Just  as  on  the  one  hand  the  crossing  of  the  frontier  by  indi- 
viduals would  be  difficult,  if  not  impossible  of  control,  so  on  the  other 
hand  it  would  be  impracticable  for  large  numbers  to  cross  together 
without  a  previous  organization  which  would  create  responsibility 
on  the  part  of  the  neutral  states."^  The  latter  contingency  he  said 
Compromise  rule,  was  provided  for  by  the  preceding  clause  of  the  French  draft,  which 
later  appeared  as  Art.  4  of  the  Convention  respecting  the  Rights  and 
Duties  of  Neutral  Powers  and  Persons  in  War  on  Land.*  But  it 
would  seem  that  the  assumption  of  the  French  delegate  that  large 
numbers  of  persons  could  not  cross  the  neutral  frontier  without  some 
form  of  organization  is  scarcely  tenable.  The  mere  fact  of  a  number 
of  volunteers  being  in  the  same  railway  carriage  or  in  the  same  steam- 
boat would  not  appear  to  constitute  an  organization  such  as  that  con- 
templated in  Art.  4.  But  granting  that  the  situation  which  the  Ger- 
man amendment  attempted  to  provide  for  is  not  adequately  met  by 
Art.  4,  it  nevertheless  remains  true  that  it  would  be  practically  im- 
possible to  determine  upon  a  rule  sufficiently  definite  in  character  to 
satisfy  the  reasonable  demands  of  the  belligerents,  and  at  the  same 
time  neither  to  impose  too  heavy  a  burden  upon  freedom  of  travel 
in  the  neutral  state,  nor  pave  the  way  for  international  disputes  as  to 

^Deuxieme  Conference  de  la  Paix,  Actes  et  Documents,  III,  201. 

^-Ibid.  202. 

nbid.   203-204. 

*"Corps  of  combatants  cannot  be  formed,  nor  recruiting  offices  opened  in  the 
territory  of  a  neutral  power  in  the  interest  of  the  belligerents."  The  expres- 
sion "corps  of  combatants"  would  evidently  extend  to  bodies  of  men  in  a  much 
less  complete  state  of  organization  than  is  required  to  constitute  the  "military 
expedition"  against  which  United  States  Revised  Statutes,  Sec.  5286,  is  directed. 


DEFICIENCIES   OF   THE    NEUTRALITY   LAWS  131 

the  proper  time  for  the  neutral  state  to  take  action.  It  would  seem 
best,  therefore,  to  leave  it  to  the  judgment  of  the  neutral  state  to 
determine  when,  by  reason  of  the  large  numbers  of  its  citizens  who 
are  crossing  the  frontier  to  enter  the  service  of  a  belligerent,  the  time 
has  come  for  it  to  take  action  to  prevent  such  important  assistance 
from  being  given  to  one  of  the  warring  parties.  The  rights  of  neutral 
states  take  precedence  over  the  rights  of  belligerents,  and  while  a 
neutral  state  is  properly  held  bound  to  prevent  any  violation  of  its 
sovereignty  in  the  interest  and  to  the  profit  of  either  of  the  belliger- 
ents, it  is  not  bound  to  disturb  its  own  domestic  peace  by  undue  re- 
strictions upon  the  liberty  of  its  citizens. 

II. 

Having  considered  the  series  of  acts  of  neutral  citizens  which,  Unneutral  acts  to 
though  of  a  character  injurious  to  a  belligerent  power,  need  not  be  ^^  extended, 
forbidden  by  the  neutral  state  according  to  the  standard  of  interna- 
tional obligation  at  present  accepted,  we  pass  to  a  consideration  of 
certain  other  acts  injurious  to  a  belligerent  power,  which  a  neutral 
state  is  bound  to  forbid,  but  which  are  not  actually  covered  by  the 
provisions  of  the  present  neutrality  laws  of  the  United  States.  For 
the  sake  of  clearness  and  systematic  presentation  we  shall  follow  the 
classification  of  acts  as  they  appear  in  the  United  States  Neutrality 
Act  of  1818,  the  provisions  of  which  are  to  be  found  in  the  Revised 
Statutes  of  the  United  States,  Sees.  5281-5291. 

Sec.  5281  reads  as  follows: 

Every  citizen  of  the  United  States  who,  within  the  territory  or 
jurisdiction  thereof,  accepts  and  exercises  a  commission  to  serve 
a  foreign  prince,  state,  colony,  district,  or  people,  in  war  by  land 
or  by  sea,  against  any  prince,  state,  colony,  district,  or  people, 
with  whom  the  United  States  are  at  peace,  shall  be  deemed  guilty 
of  a  high  misdemeanor,  and  shall  be  fined  not  more  than  two 
thousand  dollars,  and  imprisoned  not  more  than  three  years. 

It  will  be  observed  that  to  constitute  an  ofifense  it  is  necessary  for  Acceptance  of 
a  citizen  to  accept  and  exercise  a  commission.     The  mere  acceptance  Commission, 
alone  is  not  sufficient  to  constitute  an  offense.^     But  it  is  a  violation 

^See  Chap.  Ill,  p.  60,  where  it  is  pointed  out  that  a  citizen  who  accepts  a 
commission,  but  does  not  do  any  act  in  exercise  of  it,  might  perhaps  be  prose- 
cuted successfully  under  Sec.  5282  on  the  ground  that  the  acceptance  of  a 
commission  is  equivalent  to  the  enlistment  of  oneself  in  the  service  of  a 
belligerent. 


132  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

of  the  sovereignty  of  the  neutral  state  for  a  belligerent  to  perform^ 
within  the  jurisdiction  of  the  neutral  state,  the  sovereign  act  of  con- 
ferring a  commission,  whether  such  commission  be  exercised  or  not. 
Hence,  inasmuch  as  the  conferring  of  a  commission  by  one  belligerent, 
operates  to  the  prejudice  of  the  other,  it  becomes  the  duty  of  the  neu- 
tral state  to  resist  such  a  violation  of  its  sovereignty  and  to  forestall 
the  possibility  of  it  by  forbidding  the  mere  acceptance  of  a  commis- 
sion by  its  citizens.^  The  British  Foreign  Enlistment  Act  of  1870 
makes  it  an  offense  against  the  Act  "if  any  person  .  .  .  accepts 
or  agrees  to  accept  any  commission  or  engagement  in  the  military  or 
naval  service  of  any  foreign  state.  .  .  ."^  There  is  no  reference  ta 
the  "exercise"  of  the  commission  so  accepted,  and  no  overt  acts  must 
be  proven  in  order  to  prosecute  an  offender  successfully.  It  is  true- 
that  it  would  ordinarily  be  difficult  to  prove  the  acceptance  of  a 
commission  in  the  service  of  a  foreign  belligerent  except  by  the  evi- 
dence of  certain  overt  acts  done  in  pursuance  of  it.  But  this  is  not 
necessarily  the  case,  and  it  might  at  times  happen  that  proof  could  be 
given  of  the  acceptance  of  the  commission  when  no  steps  had  as  yet 
been  taken  to  carry  it  into  effect. 
Acceptance  by  Sec.  5281   is  limited  in  its  application  to    citizens    of    the    United' 

^  '^"^'  States.     But  the  same  principles  which  make  it  the  duty  of  a  neutral 

state  to  forbid  one  of  its  citizens  accepting  a  commission  from  a  for- 
eign prince  apply  with  equal  force  to  the  acceptance,  within  the  juris- 
diction of  the  neutral  state,  of  a  similar  commission  by  any  person 
whatever.  The  sovereignty  of  a  neutral  state  would  be  violated  by 
the  conferring  by  a  belligerent,  within  the  jurisdiction  of  the  neutral 
state,  of  a  commission  even  upon  one  of  its  own  citizens,  as  well  as. 
upon  any  other  aliens  resident  in  the  neutral  state.  But  it  would  not,, 
of  course,  be  regarded  as  an  infringement  of  neutral  sovereignty  for 
a  belligerent  state  to  issue  a  call  upon  its  citizens  resident  in  the  neu- 
tral state  to  return  home  in  order  to  enter  the  military  or  naval  serv- 
ice of  their  own  state. 
Issuance  and  de-  There  is  no  provision  in  Sec.  5281  prohibiting  the  issuing  or  deliv- 
hvery  of  com-  within  the  jurisdiction  of  the  United  States,  of  a  commission  to 

serve  m  the  army  or  navy  of  a  foreign  belligerent  state.  In  Sec.  5285 
there  is  a  prohibition  against  the  issuance  or  delivery  of  a  commis- 
sion "to  any  vessel"  to  the  intent  that  she  may  be  employed  as  stated 
in  the  section.     This  prohibition  was  originally  framed  in  view  of 

iSee  the  principles  enunciated  by  Jefferson  in  a  letter  to  the  French  minister 
Genet,  on  June  5,  1793,  Chap.  II,  p.  19. 
2For  the  text  of  the  act,  see  App.,  p.  191, 


mission. 


DEFICIENCIES   OF   THE    NEUTRALITY   LAWS  133 

the  practice  of  privateering  and  was  intended  to  check  the  attempts 
of  persons  who,  whether  as  real  or  pretended  agents  of  a  belHgerent 
state,  exercised  the  authority  to  confer  commissions  for  privateers 
within  the  jurisdiction  of  the  United  States.  Now  that  the  practice 
■of  privateering  has  been  formally  abolished,^  the  prohibition  against 
issuing  commissions  to  vessels  is  out  of  place  in  Sec.  5283,  and  might 
properly  be  transferred  to  Sec.  5281  in  the  form  of  a  general  prohibi- 
tion against  the  issuance  or  delivery  of  commissions  in  the  military 
or  naval  service  of  a  belligerent. 

Sec.  5281  does  not  cover  the  case  of  a  person  exercising  within  the  Exercise  of  corn- 
United  States  a  commission  obtained  outside  the  United  States.  It  is  ^'road!  ^^^^  ^ 
possible,  within  the  terms  of  Sec.  5281,  for  a  person  holding  the  com- 
mission of  a  belligerent  power  whose  boundary  is  contiguous  to 
that  of  the  United  States  to  establish  himself  within  the  territory  of 
the  United  States  and  to  direct  by  telegraph,  telephone  or  otherwise, 
Tiostile  movements  across  the  border.-  Such  an  act,  however  clearly  a 
use  of  neutral  territory  for  hostile  purposes,  is  not  indictable  under 
the  existing  neutrality  laws  of  the  United  States. 

Sec.  5282  reads  as  follows : 

Every  person  who,  within  the  territory  or  jurisdiction  of  the 
United  States,  enlists  or  enters  himself,  or  hires  or  retains  another 
person  to  enlist  or  enter  himself,  or  to  go  beyond  the  limits  or 
jurisdiction  of  the  United  States  with  intent  to  be  enlisted  or 
entered  in  the  service  of  any  foreign  prince,  state,  colony,  district, 
or  people,  as  a  soldier,  or  as  a  marine  or  seaman,  on  board  of 
any  vessel  of  war,  letter  of  marque,  or  privateer,  shall  be  deemed 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  more  than 
one  thousand  dollars,  and  imprisoned  not  more  than  three  years. 

This  section  contains  no  prohibition  against  the  act  of  inducing  or  Solicitation  of  en- 
soliciting  persons  to  accept  a  commission  or  to  enlist  in  the  service  of    *^  ™^°  ^" 
a  foreign  belligerent  power.     The  act  of  persuading  others  to  violate 
the  neutrality  of  the  United  States  is  undoubtedly  a  criminal  offense, 
and  should  be  included  within  the  scope  of  the  United  States  neutral- 
ity laws  in  order  that  their  effect  may  be  as  far  reaching  as  possible. 

^See  below,  pp.  152-154,  where  the  possibility  of  a.  partial  revival  of  privateer- 
ing under  the  form  of  volunteer  navies  is  considered. 

^The  warfare  carried  on  along  the  Texas-Mexican  border  during  the  revolu- 
tion led  by  Francisco  Madero,  in  1910-11,  against  the  Mexican  government, 
and  during  the  present  revolution  (April,  1913),  has  shown  how  the  territory 
of  the  United  States  may  be  used  as  a  vantage  ground  for  the  direction  of 
hostihties  by  leaders  of  revolutionary  parties. 


134 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Enticement    under 
false   pretences. 


Provisions   of 
British  law. 


The  British  Foreign  Enlistment  Act  of  1870  [Sec.  4]  makes  it  a 
penal  offense  against  the  Act  if  any  person  "induces  any  other  person 
to  accept  or  agree  to  accept  any  commission  or  engagement"  in  the 
military  service  of  a  belligerent. 

There  is  no  provision  in  Sec.  5282  prohibiting  the  act  of  enticing 
persons  under  false  pretenses  to  leave  the  United  States  with  intent 
on  the  part  of  the  person  enticing  them  that  they  shall  enlist  in  the 
military  or  naval  service  of  a  belligerent  when  they  have  arrived 
abroad.  The  statute  requires,  on  the  part  of  one  who  is  hired  or 
retained  to  enlist  abroad,  a  present  intent,  while  he  is  within  the 
jurisdiction  of  the  United  States,  to  enlist  when  he  is  beyond  the 
limits  of  the  United  States.^  In  1855  a  recruiting  service  was  carried 
on  in  the  United  States  by  agents  of  Great  Britain  with  the  object 
of  increasing  the  ranks  of  the  British  army  in  the  war  against  Russia.^ 
In  the  case  of  United  States  v.  Kaz'mski^  the  evidence  showed  that 
"some  eighteen  or  twenty  men  were  by  various  means  inveigled  on 
board  a  British  brig.  The  Buffalo,  at  New  York,  under  the  representa- 
tion that  they  were  to  be  employed  as  laborers  and  mechanics  at  their 
various  trades.  .  .  .  That  by  these  representations  they  were  in- 
duced to  go  on  board  The  Buffalo,  in  order  to  take  them  to  Halifax, 
to  enlist  for  the  Crimea ;  that  the  whole  thing  was  no  better  than  kid- 
napping." Owing  to  the  limited  scope  of  Sec.  5282  the  offenders  in 
this  case  could  not  be  successfully  prosecuted. 

The  British  Foreign  Enlistment  Act  of  1819  contained  limitations 
similar  to  those  of  the  United  States  Neutrality  Act  of  1818,  which 
was  its  model.*  But  in  the  British  Act  of  1870  a  clause  was  intro- 
duced providing  that  "if  any  person  induces  any  other  person  to  quit 
Her  Majesty's  dominions  under  a  misrepresentation  or  false  represen- 
tation of  the  service  in  which  such  person  is  to  be  engaged,  with  the 
intent  and  in  order  that  such  person  may  accept  or  agree  to  accept 
any  commission  or  engagement  in  the  military  or  naval  service  of  any 
foreign  state  at  war  with  a  friendly  state — he  shall  be  guilty  of  an 
offense  against  this  Act."  In  commenting  upon  this  clause  (in  the 
original  form  in  which  it  appeared  in  a  draft  bill  submitted  to  the  Brit- 
ish Neutrality  Laws  Commission  by  the  Secretary  of  State  for  Foreign 

iSee  Chap.  Ill,  p.  62. 

^The  extent  to  which  this  recruiting  was  carried  on  is  described  in  the  annual 
message  of  President  Pierce,  December  31,  1855.  Richardson's  Messages,  V, 
332-333;  See  also  the  opinion  of  Attorney  General  Gushing,  August  9,  1855. 
Papers  Relating  to  the  Treaty  of  Washington,  I,  181 ;  7  Op.  Atty.  Gen.,  367. 

326  Fed.  Cases,  No.  15,508. 

*See  App.,  p.  184. 


DEFICIENCIES   OF   THE   NEUTRALITY   LAWS  135 

Affairs),  the  framers  of  the  bill  pointed  out  that  the  clause  provided 
for  "cases  (such  as  that  of  Messrs.  Jones  and  Highat  of  Liverpool), 
in  which  seamen,  etc.,  have  been  induced  to  go  abroad  with  a  design 
on  the  part  of  those  engaging  them,  not  communicated  in  this  coun- 
try to  the  seamen  themselves,  that  they  should  elsewhere  be  prevailed 
upon  to  enlist  in  foreign  service.  Upon  the  terms  of  59  Geo.  Ill, 
cap.  69,  it  is  a  very  serious  question  whether  such  a  case  is  within 
the  Act;  the  word  'intent'  being  so  used  as  to  furnish  very  strong 
grounds  for  the  contention  that  the  seamen  themselves  must,  while  in 
British  territory,  have  fonned  the  intent  to  enlist."^  The  United 
States  neutrality  laws  should,  like  the  British  Act  of  1870,  be  extended 
so  as  to  cover  such  cases. 

Sec.  5283  reads  as  follows: 

Every  person  who,  within  the  limits  of  the  United  States,  fits 
out  and  arms,  or  attempts  to  fit  out  and  arm,  or  procures  to  be 
fitted  out  and  armed,  or  knowingly  is  concerned  in  the  furnishing, 
fitting  out,  or  arming,  of  any  vessel,  with  intent  that  such  vessel 
shall  be  employed  in  the  service  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  to  cruise  or  commit  hostili- 
ties against  the  subjects,  citizens,  or  property  of  any  foreign  prince 
or  state,  or  of  any  colony,  district  or  people,  with  whom  the 
United  States  are  at  peace,  or  who  issues  or  delivers  a  commis- 
sion within  the  territory  or  jurisdiction  of  the  United  States,  for 
any  vessel,  to  the  intent  that  she  may  be  so  employed,  shall  be 
deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  more 
than  ten  thousand  dollars,  and  imprisoned  not  more  than  three 
years.  And  every  such  vessel,  her  tackle,  apparel,  and  furniture, 
together  with  all  materials,  arms,  ammunition,  and  stores,  which 
may  have  been  procured  for  the  building  and  equipment  thereof, 
shall  be  forfeited ;  one-half  to  the  use  of  the  informer,  and  the 
other  half  to  the  use  of  the  United  States. 

This  section  does  not  by  its  terms  make  the  act  of  fitting  out  or  Commercial  trans- 
arming  a  vessel  to  the  order  of  a  belligerent  a  criminal  one,  provided  ^9^?"^  ,"°*-  ^°^" 
.        .  ,  .  ,    .        ,  ^  bidden  by  terms 

the  undertakmg  is  purely  commercial  m  character.     To  secure  con-  of  act. 

viction  under  Sec.  5283,  it  is  necessary  to  prove  that  the  persons  en- 
gaged in  the  fitting  out  and  arming  of  the  vessel  had  an  intent  that 
the  vessel  should  be  used  for  a  specific  hostile  purpose  in  violation  of 
the  neutrality  of  the  United  States.  Mere  knowledge  on  the  part  of 
the  person  fitting  out  and  arming  the  vessel  that  she  will  probably 
be  used  by  the  purchasers  to  commit  hostilities  against  a  state  with 
which  the  United  States  is  at  peace  is  not  sufficient  to  constitute  such 

^Report  of  the  British  Neutrality  Laws  ComntissioHj  No.  2. 


136  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

criminal  intent,  although  the  attempt  has  been  made,  and  probably 
will  again  be  made,  to  interpret  the  statute  so  as  to  cover  such  cases. ^ 
But  it  has  been  shown  above  that  the  present  conception  of  the  inter- 
national obligations  of  a  neutral  state  requires  that  the  act  of  fitting 
out  and  arming  vessels  within  the  neutral  state  must  be  prevented  irre- 
spective of  the  fact  that  the  intent  of  the  person  so  doing  is  a  purely 
commercial  one.^  Sec.  5283  meets  the  obligation  to  the  extent  of 
imposing  the  forfeiture  of  the  vessel  when  it  can  be  shown  that  the 
persons  by  whom  the  vessel  is  being  fitted  out  and  armed  have  the 
intent  defined  by  the  statute;  but  the  statute  is  inadequate  to  permit 
the  conviction  of  the  persons  engaged  in  fitting  out  and  arming  the 
vessel  when  the  said  persons  are  merely  performing  the  commercial 
act  of  carrying  out  a  contract  entered  into  with  the  belligerent  gov- 
ernment. In  this  respect  the  British  Foreign  Enlistment  Act  of  1870 
is  more  comprehensive  in  its  terms  than  the  United  States  Act  of 
1818.  Sec.  8  of  the  British  Act  makes  it  an  offense  if  a  person  builds 
or  equips^  a  vessel  ''with  intent  or  knowledge,  or  having  reasonable 
cause  to  believe  that  the  same  shall  or  will  be  employed  in  the  military 
or  naval  service  of  any  foreign  state  at  war  with  any  friendly  state." 
Building  vessel  Sec.  5283  does  not  include  the  act  of  building  a  vessel  with  unlawful 

intent ;  but,  inasmuch  as  the  act  of  building  a  vessel  cannot  be  success- 
fully completed  without  involving  the  act  of  fitting  out  the  vessel,  the 
omission  has  not  thus  far  resulted  in  compromising  the  neutrality  of 

iSee  Chap.  Ill,  pp.  69-72. 

2See  Chap.  IV,  pp.  115-116.  In  the  Case  of  the  United  States  presented  to  the 
Tribunal  of  Arbitration  at  Geneva,  an  attempt  was  made  to  prove  that  the 
United  States  Neutrality  Act  of  1818  measured  up  to  the  standard  of  the 
three  rules  of  the  Treaty  of  Washington.  But  this  was  both  unnecessary  and 
unfounded  in  fact.  Mr.  Snow  holds  that  "the  doctrine  set  up  by  the  United 
States  Neutrality  Act  and  by  the  Federal  courts,  that  the  'intent'  of  the  owner 
or  ship-builder  is  the  criterion  by  which  his  guilt  or  innocence  is  to  be  judged, 
is  wholly  inadequate;  it  would  not  for  a  moment  stand  the  test  of  the  rule  of 
'due  diligence,'  as  applied  by  the  Geneva  Tribunal."  Cases  and  Opinions  on 
Int.  Law,  437  note.  Scott,  Cases,  720.  In  view  of  the  ratification  by  the  United 
States  of  the  Convention  relating  to  the  Rights  and  Duties  of  Neutral  Powers 
in  Maritime  War,  Art.  8  becomes  the  rule  of  the  neutral  obhgations  of  the 
United  States  on  the  point  in  question. 

30n  October  21,  1912,  a  bill  was  introduced  into  the  House  of  Lords  the 
main  purpose  of  which,  as  explained  by  the  Lord  Chancellor,  was  to  amend 
the  terms  of  the  Foreign  Enlistment  Act  of  1870  so  as  to  bring  them  into  con- 
formity with  the  Convention  relating  to  the  Rights  and  Duties  of  Neutral 
Powers  in  Maritime  War.  The  changes  in  the  law  made  by  the  bill  were 
purely  verbal  with  the  exception  of  a  clause  alleviating  the  severity  with  which, 
it  was  said,  the  Act  of  1870  pressed  upon  British  ship-builders.  But  after 
being  read  a  second  time  in  the  House  of  Lords,  the  bill  was  withdrawn  in 
the  House  of  Commons  on  February  12,  1913. 


not    included 


DEFICIENCIES   OF   THE   NEUTRALITY   LAWS  137 

the  United  States.^  The  British  Foreign  Enlistment  Act  [Sec.  8] 
contains  a  provision  covering  the  act  of  building,  agreeing  to  build, 
or  causing  to  be  built,  any  vessel  under  the  prohibited  conditions. 

Sec.  5283  does  not  forbid  the  act  of  despatching  a  vessel  with  intent  Despatching  ves- 
or  knowledge  on  the  part  of  the  person  doing  so  that  the  vessel  shall  ^^^  "°^  included, 
or  will  be  employed  in  the  service  of  a  belligerent  state.  It  has  been 
shown,  however,  that  the  neutrality  of  the  United  States  can  be  vio- 
lated with  respect  to  a  belligerent  state  by  the  mere  departure  from 
its  shores  of  an  armed  vessel,  even  where  there  has  been  no  knowledge 
or  intent  on  the  part  of  the  persons  building  or  fitting  out  the  vessel 
that  it  is  to  be  employed  in  the  service  of  a  belligerent.^  This  point 
figured  among  the  recommendations  of  the  British  Neutrality  Laws 
Commission  in  1868,  and  a  provision  to  meet  it  was  inserted  in  the 
revised  Foreign  Enlistment  Act  of  1870. 

An  exception  should  be  made  to  the  application  of  the  statute  when 
a  vessel  is  being  built,  fitted  out,  or  armed  under  a  contract  entered 
into  by  the  builders  before  the  commencement  of  the  hostilities  in 
which  the  belligerent  for  whom  the  vessel  is  intended  is  engaged.  In 
such  cases  the  person  building,  fitting  out,  or  arming  the  vessel  should 
be  required  to  give  notice  of  the  fact  to  the  District  Court  of  the  dis- 
trict in  which  the  vessel  is  being  constructed,  together  with  particulars 
of  the  contract,  and  to  give  proper  security,  and  to  submit  to  such 
measures  as  may  be  taken  by  the  executive  authorities  for  insuring 
that  the  vessel  shall  not  be  delivered  to  the  belligerent  until  the  ter- 
mination of  the  war.  The  British  Foreign  Enlistment  Act  [Sec.  8] 
excepts  its  application  under  conditions  similar  to  those  above  men- 
tioned. 

Sec.  5283  makes  no  reference  to  the  evidence  required  to  prove  the   Evidence   of   in- 
''intent"  of  the  person  fitting  out  or  arming  the  vessel.    It  is  needless 
to  affirm  how  difficult  it  is  to  prove  "intent,"  or  even  to  prove  "knowl- 
edge" of  the  destination  of  the  vessel,  if  that  clause  is  adopted  as  well, 

^In  the  Case  of  the  United  States  presented  to  the  Tribunal  of  Arbitration 
at  Geneva,  the  argument  was  made  that  the  Neutrality  Act  of  1818  had  been 
regularly  interpreted  by  the  United  States  as  including  the  act  of  building  the 
vessel.  They  therefore  argued  that  the  words  "fitting  out,  arming,  or  equip- 
ping" of  any  vessel  employed  in  the  Treaty  of  Washington  were  intended  to 
include  the  building  of  the  vessel.  "The  framers  of  that  treaty,"  it  was  said, 
"sought  for  language  which  would,  beyond  any  question,  indicate  the  duty  of 
the  neutral  to  prevent  the  departure  from  its  ports  of  any  vessel  that  had 
teen  specially  adapted  for  the  hostile  use  of  a  belligerent,  whether  that  adapta- 
tion began  when  the  keel  was  laid  to  a  vessel  intended  for  such  hostile  use,  or 
whether  it  was  made  in  later  stages  of  construction,  or  in  fitting  out,  or  in 
furnishing,  or  in  equipping,  or  in  arming,  or  in  any  other  way."  Papers  Re- 
lating to  the  Treaty  of  Washington,  I,  69. 

2See  above,  p.  116. 


tent. 


test 


138  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

in  order  to  include  the  intent  of  the  parties  for  whom  the  vessel  is 
Hall's  proposed  being  fitted  out  and  armed. ^  It  has  been  suggested  by  Hall  that,  in- 
stead of  the  intent  of  the  parties  concerned,  the  character  of  the  ship 
itself  be  adopted  as  the  test,^  so  that  the  neutral  would  be  placed  under 
the  duty  of  preventing  the  departure  of  "vessels  built  primarily  for 
warlike  use"  if  destined  for  the  service  of  a  belligerent,  while  it  could 
permit  the  departure  of  "vessels  primarily  fitted  for  commerce" 
whatever  be  their  destination.  This  rule  has  the  great  merit 
of  simplicity,  but  it  is  less  comprehensive  than  the  first  rule  of 
the  Treaty  of  Washington  or  its  modern  substitute.  Art.  8  of  the 
Convention  relating  to  the  Rights  and  Duties  of  Neutral  Powers  in 

^See  above,  p.  63. 

-After  arguing  that  the  indefiniteness  of  the  existing  rule  will  greatly  in- 
crease the  number  of  international  controversies,  Hall  says :  "Experts  are  per- 
fectly able  to  distinguish  vessels  built  primarily  for  warlike  use;  there  would 
therefore  be  little  practical  difficulty  in  preventing  their  exit  from  neutral  ports, 
and  there  is  no  reason  for  relieving  a  neutral  government  from  a  duty  which 
it  can  easily  perform.  But  it  is  otherwise  with  many  vessels  primarily  fitted 
for  commerce.  Perhaps  few  fast  ships  are  altogether  incapable  of  being  so 
used  as  to  inflict  damage  upon  trade ;  and  there  is  at  least  one  class  of  ves- 
sels which  on  the  principles  urged  by  the  government  of  the  United  States  in 
the  case  of  the  Georgia  might  fix  a  neutral  state  with  international  respon- 
sibility in  spite  of  the  exercise  by  it  of  the  utmost  vigilance.  Mail  steamers 
of  large  size  are  fitted  by  their  strength  and  build  to  receive,  without  much 
special  adaptation,  one  or  two  guns  of  sufficient  calibre  to  render  the  ships 
carrying  them  dangerous  cruisers  against  merchantmen.  These  vessels,  though 
of  distinct  character  in  their  more  marked  forms,  melt  insensibly  into  other 
types,  and  it  would  be  impossible  to  lay  down  a  rule  under  which  they  could 
be  prevented  from  being  sold  to  a  belligerent  and  transformed  into  constituent 
parts  of  an  expedition  immediately  outside  neutral  waters  without  paralysing 
the  whole  ship-building  and  ship-selling  trade  of  the  neutral  country."  Op. 
Cit.,  611.  Hall's  position  is  supported  by  T.  J.  Lawrence  who  thinks  that 
"belligerents  would  do  well  to  submit  to  the  free  sale  and  issue  of  such 
[commercial]  ships  in  consideration  of  the  total  prohibition  of  the  construc- 
tion of  war-vessels  for  their  opponents,"  while  "neutrals  would  find  it  ad- 
vantageous to  purchase  freedom  of  commercial  ship-building  and  entire  im- 
munity from  belligerent  reproaches  by  the  sacrifice,  during  hostilities,  of  their 
trade  with  the  contending  powers  in  ships  of  war."  Principles  of  Int.  Law, 
549.  Lorimer  argues  convincingly  that  the  test  of  the  "intention"  with 
which  acts  are  done  is  not  a  satisfactory  one  in  the  matter  of  violations  of 
neutrality  by  neutral  citizens,  and  urges  the  rule  of  free  trade  in  ships,  as  in 
other  munitions  of  war,  on  the  ground  that  it  is  "impossible  to  draw  a  work- 
able distinction  between  a  ship  of  war  and  a  ship  that  may  be  used  for  war." 
Institutes  of  the  Law  of  Nations,  H,  169-172;  Kleen  argues  strongly  against 
the  attempt  to  set  aside  the  test  of  the  "intention"  by  which  the  act  of  fitting 
out  and  arming  vessels  has  hitherto  been  judged;  considering  that  the  separate 
parts  of  an  armed  ship  have  in  them  little  that  is  distinctive  of  the  whole, 
there  is  need,  he  says,  of  an  "internal  principle,  which  constitutes  the  guilt 
independently  of  the  size  or  unity  of  the  object.  This  internal  principle  can 
be  none  other  than  the  intention,  the  motive,  properly  proved,  that  is  to  say, 
the  element  of  all  penal  guilt."  But,  while  admitting  the  difficulty  of  proving 
intentions,  he  seems  to  overlook  the  fact  that  the  purpose  of  seeking  some 
more  objective  test  of  responsibility  is  to  avoid  the  international  disputes 
which  are  likely  to  arise  upon  the  very  point  of  proving  intentions. 


DEFICIENCIES  OF  THE  NEUTRALITY  LAWS  139 

Maritime  War.  It  would  prevent  the  construction  and  equipment 
in  neutral  states  of  vessels  of  war  for  the  use  of  a  belligerent,  but  it 
would  not  prevent  the  construction  and  equipment  to  the  order  of  a 
belligerent  of  merchant  vessels  which  may  be  put  to  use  in  maritime 
warfare  either  as  fleet  auxiliaries,  or,  by  the  subsequent  addition  of  a 
small  armament,  as  light-armed  cruisers.  But  inasmuch  as  the  first 
rule  of  the  Treaty  of  Washington  represents  the  law  which  the  United 
States  has  agreed  to  enforce,  the  neutrality  laws  of  the  United  States 
must  not  fall  short  of  that  standard.  In  order  to  meet  the  require- 
ments of  the  first  rule  of  the  Treaty  of  Washington  a  provision  should 
be  introduced  into  United  States  statute  to  the  effect  that  in  the  case 
of  war-ships,  which  have  by  their  nature  but  one  use,  the  burden  of  Burden  of  proof, 
proof  shall  lie  on  the  builders  that  the  vessels  under  construction  are 
not  being  built  to  the  order  of  a  belligerent.  The  builder  should  be 
required  to  show  a  bona  fide  neutral  destination,  and  the  absence  of  a 
contract  of  the  builder  with  a  neutral  government  should  be  held  to  be 
prima  facie  evidence  of  a  hostile  destination,  or  at  least  sufficient 
ground  for  the  neutral  state  to  put  a  stop  to  further  acts  of  the  build- 
ers. A  mere  contract  of  the  builder  with  citizens  of  another  neutral 
state  would  not  be  sufficient  guarantee  of  the  innocent  destination  of 
the  vessel,  since  it  would  leave  it  possible  for  consignees  to  transfer 
the  vessel,  when  delivered,  to  a  belligerent. 

In  the  case  of  merchant  vessels  the  old  test  of  the  intent  of  the  per-  Evidence  in  case 
son  fitting  out  and  arming  them  has  given  way  in  favor  of  the  new,  °  merchant 
and  hardly  more  practicable,  test  of  the  destination  of  the  vessel.  A 
belligerent  will  naturally  resort  to  intermediary  contracts,  and  the 
neutral  state  is  faced  with  the  problem  of  investigating  the  status  of 
the  consignees  of  the  vessel  on  the  slender  chance  that  the  latter  will 
be  found  to  be  agents  of  the  belligerent.  The  actual  result  will  be 
that  the  provisions  of  Art.  8  will  remain  practically  inoperative  as  re- 
gards merchant  vessels  fitted  out  for  a  belligerent,  but  bearing  no 
special  marks  suggesting  an  ultimate  use  in  hostile  operations. 

A  better  rule  on  this  subject  is  certainly  to  be  desired,  but  at  present  Alternatives, 
the  only  other  alternatives  are  either  to  allow  merchant  vessels  to  be 
freely  fitted  out  or  otherwise  prepared,  except  in  point  of  armament, 
within  neutral  jurisdiction  for  belligerent  use,  or  else  to  prohibit  abso- 
lutely the  transfer  of  merchant  vessels  within  neutral  jurisdiction  in 
time  of  war.  The  latter  alternative  would,  as  Mr.  Hall  says,  have  the 
effect  of  "paralysing  the  whole  ship-building  and  ship-selling  trade  of 
the  neutral  country,"  while  the  former  alternative  runs  counter  to  the 
principle  of  neutral  duty  formulated  in  the  first  of  the  three  rules  of 


140  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

the  Treaty  of  Washington  and  embodied  in  Art.  8  of  the  Convention 
relating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Maritime 
War.  Moreover  to  permit  a  belligerent  not  only  to  buy,  but  to  fit  out 
in  neutral  ports,  merchant  vessels  which  are  avowedly  intended  to  form 
auxiliary  cruisers  of  the  belligerent  fleet,  would  open  the  way  to  end- 
less disputes  as  to  what  extent  of  equipment  ought  to  be  considered  as 
constituting  a  merchant  vessel  an  armed  vessel.  Some  technical  inter- 
national rules  would  need  to  be  adopted  marking  the  line  between  the 
two  classes  of  vessels,  so  that  it  would  not  be  left  to  the  arbitrary 
determination  of  any  one  state  as  to  what  thickness  of  armor  plate  and 
what  extent  of  framework  adapted  to  receiving  gun-carriages  would 
change  the  character  of  the  vessel  from  a  merchant  to  an  armed  ship. 
Summary.  In  conclusion  it  may  be  said  that,  while  there  is  much  difficulty  at- 

tending the  proof  by  a  neutral  state  that  a  vessel  of  the  commercial 
type  has  been  fitted  out  with  a  belligerent  destination  in  view,  the 
present  rule  that  the  destination  of  the  vessel  determines  the  legality 
of  the  act  of  fitting  it  out,  besides  being  clear  in  principle,  has  the 
advantage  of  requiring  the  neutral  state  to  prevent  the  departure  from 
its  ports  of  merchant  vessels  which  bear  clear  marks  of  having  been 
adapted  for  use  in  war.  In  the  same  way,  while  a  neutral  state  is 
not  bound  to  prevent  the  sale  within  its  jurisdiction  of  a  merchant 
vessel  to  a  belligerent,  it  is  called  upon  under  the  present  rule  to 
determine  when  the  vessel  bears  such  marks  of  having  been  adapted 
for  use  in  war  as  to  indicate  that  it  is  destined  to  be  used  to  commit 
hostilities  even  though  the  vessel  was  originally  constructed  with  a 
commercial  end  in  view.  Finally,  the  present  rule  has  the  advantage 
of  stating  a  general  principle  of  neutral  duty  rather  than  of  imposing 
hard  and  fast  regulations.  While  definiteness  in  the  law  is  always 
desirable,  it  would  seem  that  on  this  subject  conditions  are  not  such 
that  a  definite  law  can  be  formulated  at  present.  In  the  meantime,  it 
is  well  to  leave  some  liberty  to  the  neutral  state  in  the  interpretation 
of  accepted  principles.^ 

Sec.  5284  reads  as  follows :  ♦ 

Every  citizen  of  the  United  States  who,  without  the  limits 
thereof,  fits  out  and  arms,  or  attempts  to  fit  out  and  arm,  or 
procures  to  be  fitted  out  and  armed,  or  knowingly  aids  or  is  con- 
cerned in  furnishing,  fitting  out,  or  arming  any  private  vessel  of 
war,  or  privateer,  with  intent  that  such  vessel  shall  be  employed 

iSee  above,  pp.  120-123. 


DEFICIENCIES   OF   THE   NEUTRALITY   LAWS  141 

to  cruise,  or  commit  hostilities,  upon  the  citizens  of  the  United 
States,  or  their  property,  or  who  takes  the  command  of,  or  enters 
on  board  of  any  such  vessel,  for  such  intent,  or  who  purchases  any 
interest  in  any  such  vessel,  with  a  view  to  share  in  the  profits 
thereof,  shall  be  deemed  guilty  of  a  high  misdemeanor,  and  fined 
not  more  than  ten  thousand  dollars,  and  imprisoned  not  more 
than  ten  years.  And  the  trial  for  such  offence,  if  committed  with- 
out the  limits  of  the  United  States,  shall  be  in  the  district  in  which 
the  offender  shall  be  apprehended  or  first  brought. 

This  section,  as  was  pointed  out  in  Chapter  III,^  bears  no  relation  Statute  bears  no 
to  the  obligations  of  the  United  States  as  a  neutral  state,  and  it  has,  trality. 
therefore,  no  proper  place  in  the  Neutrality  Act.  In  so  far  as  it  pro- 
vides for  the  protection  of  citizens  of  the  United  States  against  hos- 
tilities committed  upon  them  or  their  property  by  their  fellow  citi- 
zens it  is  merely  superfluous,  since  such  protection  is  provided  for  by 
the  laws  of  the  United  States  for  the  punishment  of  piracy.  Sees.  5370 
and  5372  of  the  Revised  Statutes  define  as  piracy  the  act  of  committing 
murder  or  robbery  upon  the  high  seas,  while  Sec.  5373  makes  it  an  act 
of  piracy  to  commit  an  act  of  hostility  against  citizens  of  the  United 
States  on  the  high  seas  "under  color  of  any  commission  from  any 
foreign  prince  or  state,  or  on  pretence  of  an  authority  from  any 
person." 

Sec.  5285  reads  as  follows: 

Every  person  who,  within  the  territory  or  jurisdiction  of  the 
United  States,  increases  or  augments,  or  procures  to  be  increased 
or  augmented,  or  knowingly  is  concerned  in  increasing  or  aug- 
menting, the  force  of  any  ship  of  war,  cruiser,  or  other  armed  ves- 
sel, which,  at  the  time  of  her  arrival  within  the  United  States, 
was  a  ship  of  war,  or  cruiser,  or  armed  vessel,  in  the  service  of 
any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  or 
belonging  to  the  subjects  or  citizens  of  any  such  prince,  or  state, 
colony,  district,  or  people,  the  same  being  at  war  with  any  for- 
eign prince  or  state,  or  of  any  colony,  district,  or  people,  with 
whom  the  United  States  are  at  peace,  by  adding  to  the  number  of 
the  guns  of  such  vessel,  or  by  changing  those  on  board  of  her  for 
guns  of  a  larger  caliber,  or  by  adding  thereto  any  equipment  solely 
applicable  to  war,  shall  be  deemed  guilty  of  a  high  misdemeanor, 
and  shall  be  fined  not  more  than  one  thousand  dollars  and  be  im- 
prisoned not  more  than  one  year. 

This  section  relates  exclusively  to  acts  connected  with  foreign  ves-  Statute  relates  to 
sels  of  war  sojourning  in  the  ports  of  the  United  States,  and  it  is  for   foreign   vessels 

iSee  above,  p.  19. 


142  NEUTRALITY   LAWS  OF  THE  UNITED   STATES 

this  reason,  as  was  pointed  out  in  Chapter  III/  that  the  intent  which 
determines  the  offense  under  Sec.  5283  need  not  be  proved,  since  it  is 
presumed  from  the  ownership  of  the  vessel.  In  so  far  as  Sec.  5284 
relates  to  the  public  vessels  of  a  foreign  state  or  to  vessels  holding  the 
commission  of  a  foreign  state,  it  will  be  seen  that  in  passing  the  Acts 
of  1794  and  1818  the  United  States  was  not  satisfied  with  attempting 
to  prevent  the  augmentation  of  the  force  of  such  vessels  by  complain- 
ing diplomatically  to  the  governments  concerned  that  their  officers 
were  compromising  the  neutrality  of  the  United  States.  The  policy 
was  adopted  of  holding  the  commanders  and  officers  of  such  vessels, 
as  well  as  their  agents  in  the  act  of  augmenting  the  force  of  their 
vessels,  directly  responsible  and  amenable  to  the  criminal  jurisdiction 
of  the  United  States  courts.^  Sec.  5285  specifies  three  distinct  ways 
in  which  the  force  of  a  foreign  ship  of  war  may  be  increased  or  aug- 
mented, and  to  them  must  be  added,  in  view  of  the  decision  in  the  case 
of  the  Santissima  Trinidad,  a  fourth  not  mentioned  in  the  statute, 
namely,  a  substantial  increase  of  the  crew.^  But  during  the  last  fifty 
years  the  privileges  which  were  formerly  accorded  to  belligerent  ves- 
sels of  war  in  neutral  ports  have  been  much  restricted.  On  this,  as 
on  other  points  of  neutral  obligation,  the  American  Civil  War  brought 
about  the  adoption  of  rules  more  in  accord  with  the  altered  conditions 
of  modern  warfare. 
Modern  rules  of  In  1861  the  United  States  government  complained  to  Great  Britain 
asylum.  ^h^t  the  Confederate  vessel  Simipter  had  remained  six  days  in  the 

British  port  of  Trinidad,  and  had  been  there  furnished  with  all  the 
necessary  supplies  for  the  continuance  of  her  cruise.  The  British 
government  denied  that  the  said  acts  of  the  Sumpter  constituted  any 
violation  of  its  neutrality  proclamation ;  but  with  a  view  of  preventing 
the  recurrence  of  similar  complaints  and  of  preventing  the  abuse  of 
the  asylum  granted  in  British  ports  to  belligerent  vessels,  orders  were 
issued  on  January  31,  1862,  to  the  Lords  Commissioners  of  the  Ad- 
miralty to  the  effect  that  no  vessels  of  either  belligerent  were  to  be 
allowed  to  remain  in  British  ports  more  than  twenty- four  hours  ex- 
cept in  case  of  stress  of  weather  or  of  the  vessel  requiring  provisions 
or  repairs ;  supplies  were  not  to  be  taken  in  "beyond  what  may  be 
necessary  for  her  immediate  use,"  and  they  were  to  consist  only  of 
"provisions  and  such  other  things  as  may  be  requisite  for  the  sub- 

^See  above,  p.  80. 

2See  an  opinion  of  Attorney  General  Nelson  rendered  in   1844,  4  Op.  Atty. 
Gen.,  336.     For  the  present  rule  of  international  law,  see  Moore,  II,  §256. 
3See  above,  p.  81. 


DEFICIENCIES   OF   THE    NEUTRALITY   LAWS  143 

sistence  of  the  crew,"  together  with  "so  much  coal  only  as  may  be 
sufficient  to  carry  such  vessel  to  the  nearest  port  of  her  own  country, 
or  to  some  nearer  destination ;"  and  no  coal  was  to  be  again  supplied 
to  any  such  ship  without  special  permission,  until  the  expiration  of 
three  months  from  the  time  the  last  supply  was  granted.  No  definite 
limitation  was  placed  upon  the  repairs  which  a  belligerent  vessel  might 
make  in  British  ports,  though  in  one  clause  indirect  reference  is 
made  to  "necessary  repairs."^  The  clause  relating  to  the  amount  of 
coal  which  might  be  taken  on  board  marks  the  recognition  of  the  new 
conditions  created  by  the  use  of  steam  as  a  motive  power.  On  October 
8,  1870,  during  the  war  between  France  and  Germany,  a  proclamation 
was  issued  by  General  Grant  imposing  similar  restrictions  upon  bel- 
ligerent vessels  in  the  ports  of  the  United  States.^  In  1871  the  second 
rule  of  the  Treaty  of  Washington  formulated  a  general  principle  with 
regard  to  the  restrictions  which  should  be  placed  upon  belligerent  ves- 
sels in  neutral  ports.  A  neutral  government  was  held  bound  "not  to 
permit  or  sufifer  either  belligerent  to  make  use  of  its  ports  or  waters 
as  the  base  of  naval  operations  against  the  other,  or  for  the  purpose 
of  the  renewal  or  augmentation  of  military  supplies  or  arms,  or  the 
recruitment  of  men."^ 
By  the  time  of  the  Second  Hague  Conference  the  rules  promulgated 

^For  the  text  of  the  instructions,  see  Papers  Relating  to  the  Treaty  of  IVasIi- 
ington,  I,  226. 

2Richardson's  Messages,  VII,  89. 

3In  the  Case  of  the  United  States  presented  to  the  Tribunal  of  Arbitration 
at  Geneva,  the  scope  of  this  rule  was  explained  as  follows:  "The  ports  or 
waters  of  the  neutral  are  not  to  be  made  the  base  of  naval  operations  by  a 
belligerent.  Vessels  of  war  may  come  and  go  under  such  rules  and  regula- 
tions as  the  neutral  may  prescrilae;  food  and  the  ordinary  stores  and  supplies 
of  a  ship,  not  of  a  warlike  character,  may  be  furnished  without  question,  in 
quantities  necessary  for  immediate  wants;  the  moderate  hospitalities  which  do 
not  infringe  upon  impartiality  may  be  extended;  but  no  act  shall  be  done  to 
make  the  neutral  port  a  base  of  operations.  Ammunition  and  military  stores 
for  cruisers  cannot  be  obtained  there;  coal  cannot  be  stored  there  for  succes- 
sive supplies  to  the  same  vessel,  nor  can  it  be  furnished  or  obtained  in  such 
supplies;  prizes  cannot  be  brought  there  for  condemnation.  The  repairs  that 
humanity  demand  can  be  given,  but  no  repairs  should  add  to  the  strength  or 
etificiency  of  a  vessel,  beyond  what  is  absolutely  necessary  to  gain  the  nearest 
of  its  own  ports."  Papers  Relating  to  the  Treaty  of  IVashiiigton,  I,  71.  This 
statement,  however  comprehensive  it  may  seem  from  the  details  given,  adds 
nothing  to  the  British  rules  of  1862  except  that  a  more  definite  limitation  is 
placed  upon  the  repairs  which  may  be  made  upon  vessels.  As  early  as  1828, 
Henry  Clay,  Secretary  of  State,  with  reference  to  a  Buenos  Airean  privateer 
in  the  port  of  Baltimore,  placed  a  limitation  upon  the  repairs  which  the  ves- 
sel might  make.  "The  reparation  of  damages,"  he  said,  "which  she  may  have 
experienced  from  the  sea  is  allowable,  but  the  reparation  of  those  which  may 
have  been  inflicted  in  the  action  is  inadmissible."  Moore,  Int.  Law  Diqest, 
VII,  991. 


144  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Rules  adopted  by  by  Great  Britain  in  1862  had  been  generally  adopted  by  other  nations.* 
ence"of  1907 ^'^'  With  respect  to  the  general  principles  of  belHgerent  asylum  in  neutral 
ports  it  was  not  difficult  to  secure  an  agreement  at  the  conference 
embodying  the  substance  of  the  second  rule  of  the  Treaty  of  Wash- 
ington ;  the  first  clause  of  the  rule  appearing  as  Art.  5-  of  the  Con- 
vention relating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Mari- 
time War,  and  the  second  clause  appearing  as  Art.  18  of  the  same 
convention.^  With  respect  to  the  extent  of  the  repairs  which  a  bel- 
ligerent vessel  may  make  in  a  neutral  port,  it  was  agreed  [Art.  17] 
that  "in  neutral  ports  and  roadsteads  belligerent  war-ships  may  only 
carry  out  such  repairs  as  are  absolutely  necessary  to  render  them  sea- 
worthy, and  may  not  add  in  any  manner  whatsoever  to  their  fighting 
force.  The  local  authorities  of  the  neutral  power  shall  decide  what 
repairs  are  necessary,  and  these  must  be  carried  out  with  the  least  pos- 
sible delay."  With  respect  to  the  supplies,  other  than  those  of  a 
military  character,  which  a  belligerent  vessel  may  obtain  in  neutral 
ports,  the  first  paragraph  of  Art.  19  provides  that  "belligerent  war- 
ships may  only  revictual  in  neutral  ports  or  roadsteads  to  bring  up 
their  supplies  to  the  peace  standard."  Much  difficulty  was  experienced 
in  formulating,  on  the  subject  of  supplies  of  coal,  a  rule  agreeable  to 
the  conflicting  interests  of  the  powers.  The  second  paragraph  of 
Art.  19  provides  that  "similarly  these  vessels  may  only  take  suffi- 
cient fuel  to  enable  them  to  reach  the  nearest  port  in  their  own 
country.  They  may,  however,  fill  up  their  bunkers  built  to  carry  fuel, 
when  in  neutral  countries  which  have  adopted  this  method  of  deter- 
mining the  amount  of  fuel  to  be  supplied."*     Art.  20  provides  that 

iln  1898,  during  the  Spanish-American  war,  the  French  government  issued 
instructions  requiring,  among  other  things,  the  enforcement  by  French  prefects 
of  the  rule  that  "a  belligerent  can  only  be  furnished  with  such  food,  provision, 
and  material  for  repairs  as  are  necessary  for  the  subsistence  of  the  crew  and 
the  security  of  the  voyage."  Mandelstam  and  Nolde,  Guerre  Maritime  ef 
N eutralite ,  230.  During  the  war  between  Japan  and  Russia  proclamations  con- 
taining provisions  similar  to  those  of  the  British  instructions  of  1862  were 
issued  by  China,  Denmark,  and  Sweden  and  Norway.    For.  Rel.,  1904,  19,  21,  31. 

^"Belligerents  are  forbidden  to  use  neutral  ports  and  waters  as  a  base  of 
naval  operations  against  their  adversaries,  and,  in  particular,  to  erect  wire- 
less telegraph  stations  or  any  apparatus  intended  to  serve  as  a  means  of  com- 
munication with  the  belligerent  forces  on  land  or  sea." 

^"Belligerent  war-ships  may  not  make  use  of  neutral  ports,  roadsteads,  and 
territorial  waters  for  replenishing  or  increasing  their  supplies  of  war  ma- 
terial or  their  armament,  or  for  completing  their  crews." 

*The  rule  represents  a  compromise  between  the  British  proposal  that  ves- 
sels should  be  allowed  to  ship  only  so  much  fuel  as  is  necessary  to  carry  them 
to  the  nearest  port  of  their  own  country,  and  the  proposal  supported  by  Ger- 
many and  other  powers  that  vessels  should  be  given  the  supply  of  coal  which 
they  would  normally  carry  in  time  of  peace.  Deuxieme  Conference  de  la  Paix, 
Actes  et  Documents,  I,  315-317. 


called  for. 


DEFICIENCIES    OF   THE    NEUTRALITY    LAWS  145 

"belligerent  war-ships  which  have  shipped  fuel  in  a  port  belonging  to 
a  neutral  power  may  not,  within  the  succeeding  three  months,  replen- 
ish their  supply  in  a  port  of  the  same  power." 

In  consequence  of  the  greater  restrictions  placed  by  modern  inter-  Amendments 
national  law  upon  the  supplies  which  belligerent  vessels  may  be  al- 
lowed to  obtain  in  neutral  ports,  the  provisions  of  the  United  States 
neutrality  laws  on  this  point  fall  short  of  the  standard  of  neutral  duty. 
Sec.  5285  makes  no  mention  of  supplies  other  than  those  which  may 
be  included  under  "equipment  solely  applicable  to  war."  The  statute 
would  not  be  violated  by  the  fact  that  a  war-ship,  or  other  public 
vessel  of  a  belligerent  in  the  ports  of  the  United  States,  should  be 
furnished  with  large  quantities  of  food,  coal,  and  other  non-military 
supplies,  in  excess  of  the  amount  permitted  by  Art.  19  of  the  Con- 
vention relating  to  the  Rights  and  Duties  of  Neutral  Powers  in 
Maritime  War.  Moreover,  Sec.  5285  contains  no  provision  limiting 
the  extent  to  which  repairs  may  be  made  by  a  belligerent  vessel  in  the 
ports  of  the  United  States.  On  the  assumption  that  the  United 
States,  following  its  traditional  policy,  is  unwilling  to  rest  satisfied 
with  attempting  to  prevent,  by  protest  through  diplomatic  channels, 
violations  of  its  neutrality  on  these  points  by  the  public  vessels  of  a 
belligerent,  it  is  clear  that  Sec.  5285  should  be  so  enlarged  as  to  pro- 
hibit the  officers  of  the  public  vessels  of  a  belligerent,  as  well  as  their 
agents  in  the  United  States,  from  doing  any  of  the  acts  forbidden  by 
Arts.  17,  18,  19  and  20  of  the  Convention  relating  to  the  Rights  and 
Duties  of  Neutral  Powers  in  Maritime  War.  Apart  from  the  obliga- 
tions incurred  by  the  United  States  under  this  convention,  it  is  proper 
that  the  neutrality  laws  of  the  country  should  be  up  to  the  standard 
of  the  rules  previously  promulgated  by  the  United  States.^ 

Sec.  5286  reads  as  follows : 

Every  person  who,  within  the  territory  or  jurisdiction  of  the 
United  States,  begins,  or  sets  on  foot,  or  provides  or  prepares  the 
means  for,  any  military  expedition  or  enterprise,  to  be  carried 
on  from  thence  against  the  territory  or  dominions  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom 
the  United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high 
misdemeanor,  and  shall  be  fined  not  exceeding  three  thousand 
dollars,  and  imprisoned  not  more  than  three  years. 

iThe  latest  expression  of  the  present  attitude  of  the  United  States  upon  the 
subject  is  to  be  found  in  the  neutrality  proclamation  of  February  11,  1904, 
issued  during  the  war  between  Russia  and  Japan. 


146  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Whether  "military  The  precise  scope  of  the  terms  of  this  section  was  set  forth  in  Chap- 
ers*^'corps  of°^'  ^^^  ^^^'^  ^^  ^^^  there  shown  that  to  begin,  set  on  foot,  provide  or 
combatants."  prepare  the  means  for  a  military  expedition  included  practically  every 

form  of  cooperation  in  the  enterprise.  It  was  also  shown  that  the  in- 
terpretation of  the  words  "military  expedition"  has  been  somewhat 
strict,  as  was  proper  to  the  terms  of  a  criminal  statute.  It  may  be  ques- 
tioned whether  a  "military  expedition"  as  interpreted  by  the  courts,  is 
comprehensive  enough  to  include  the  somewhat  indefinite  expression 
"corps  of  combatants"  which  occurs  in  Art.  4  of  the  Convention  re- 
lating to  the  Rights  and  Duties  of  Neutral  Powers  and  Persons  in 
War  on  Land.^  A  "corps  of  combatants"  might  be  constituted  by  a 
body  of  men  organized  for  the  purpose  of  leaving  the  neutral  coun- 
try to  aid  a  belligerent  nation,  but,  nevertheless,  remaining  wholly  un- 
armed until  they  reached  the  belligerent  country.^  But  it  has  been 
held  by  the  United  States  courts  that  to  constitute  a  "military  expe- 
dition," within  the  terms  of  Sec.  5286,  the  men  comprising  it  must  be 
provided  with  appropriate  arms,  such  as  will  enable  them  to  do  the 
military  work  contemplated  by  them,*  although  the  arms  need  not  be 
carried  upon  their  persons  if  preparations  have  been  made  to  secure 
the  arms  before  the  party  reaches  the  scene  of  hostilities.^  It  is  con- 
ceded that  a  neutral  state  which  endeavors,  by  the  enactment  of  mu- 
nicipal legislation,  to  give  effect  to  the  obligation  incurred  by  Art.  4 
of  the  Convention  relating  to  the  Rights  and  Duties  of  Neutral  Powers 
and  Persons  in  War  on  Land,  is  confronted  with  the  difficulty  of  de- 
termining just  what  number  of  men  and  what  extent  of  organization 
among  them  is  to  constitute  a  "corps  of  combatants."  But  this  diffi- 
culty is  no  greater  than  that  met  with  in  carrying  out  many  other 
parts  of  the  criminal  law  of  a  state,  in  which  the  principle  de  minimis 
non  curat  lex  has  to  be  applied.  When  the  body  of  persons  leaving 
a  neutral  country  to  enlist  in  foreign  belligerent  service  becomes  so 
considerable,  by  reason  of  numbers  and  organization,  as  to  call  forth 
the  complaints  of  the  belligerent  who  is  injured  thereby,  it  will  not  be 
hard  to  determine  whether  such  a  body  constitutes  a  "corps  of  com- 
batants." 

Neither  Sec.  5286,  nor  any  of  the  preceding  sections  just  discussed, 

iSee  above,  pp.  82-87. 

2"Corps  of  combatants  cannot  be  formed  nor  recruiting  offices^  opened  on  the 
territory  of  a  neutral  power  in  the  interest  of  the  belligerents." 
3See  above,  p.  130. 

^United  States  v.  Hart,  74  Fed.  Rep.,  724 ;  see  above,  p.  85. 
^United  States  v.  Hart,  78  Fed.  Rep.,  868. 


DEFICIENCIES   OF    THE   NEUTRALITY   LAWS  147 

makes  provision  for  the  special  circumstance  of  one  of  the  belliger-  Special  circum- 
ents  possessing-  territory  bordering  on  the  United  States.  In  dis-  ^^^  frontier 
cussing  Sec.  5281,  it  was  pointed  out^  that  there  was  no  provision 
covering  the  case  in  which  a  person,  holding  the  commission  of  a  for- 
eign state,  establishes  himself  in  the  territory  of  the  United  States  and 
there  directs,  by  telegraph,  telephone  or  otherwise,  hostile  movements 
across  the  border.  A  somewhat  similar  use  might  be  made  of  neutral 
territory  by  the  quartermaster's  department  of  a  belligerent  army. 
A  large  quantity  of  military  supplies,  whether  consisting  of  conditional 
contraband  in  the  form  of  food,  clothing,  etc.,  or  of  absolute 
contraband  in  the  form  of  guns,  munitions,  etc.,  might  be  collected  in 
the  United  States  and  stored  in  some  town  near  the  border  of  the 
belligerent  country.  Agents  of  the  belligerent  could  be  established 
in  this  town  and  could  ship  the  supplies  across  the  border  to  the  bel- 
ligerent army  as  directed.  By  these  arrangements  the  neutral  town 
could,  in  a  very  real  way,  be  made  a  base  of  operations  for  the  bel- 
ligerent army,  just  as  a  neutral  port  would  become  a  base  of  opera- 
tions if  a  belligerent  war  vessel  should  draw  from  it  frequent  renewals 
of  supplies.  The  recognition  of  this  fact  by  the  United  States  has  re- 
sulted in  the  adoption  of  the  joint  resolution  of  March  14,  1912, 
which  will  be  considered  below.^ 

Sec.  5287  reads  as  follows: 

[The  district  courts  shall  take  cognizance  of  all  complaints,  by 
whomsoever  instituted,  in  cases  of  captures  made  within  the  wa- 
ters of  the  United  States,  or  within  a  marine  league  of  the  coasts 
or  shores  thereof.]  In  every  case  in  which  a  vessel  is  fitted  out 
and  armed,  or  attempted  to  be  fitted  out  and  armed,  or  in  which 
the  force  of  any  vessel  of  war,  cruiser,  or  other  armed  vessel  is 
increased  or  augmented,  or  in  which  any  military  expedition  or 
enterprise  is  begun  or  set  on  foot,  contrary  to  the  provisions  and 
prohibitions  of  this  Title ;  and  in  every  case  of  the  capture  of  a 
vessel  within  the  jurisdiction  or  protection  of  the  United  States  as 
before  defined ;  and  in  every  case  in  which  any  process  issuing 
out  of  any  court  of  the  United  States  is  disobeyed  or  resisted  by 
any  person  having  the  custody  of  any  vessel  of  war,  cruiser,  or 
other  armed  vessel  of  any  foreign  prince  or  state,  or  of  any  col- 
ony, district,  or  people,  or  of  any  subjects  or  citizens  of  any  for- 
eign prince  or  state,  or  of  any  colony,  district,  or  people,  it  shall 
be  lawful  for  the  President,  or  such  other  person  as  he  shall  have 
empowered  for  that  purpose,  to  employ  such  part  of  the  land  or 

^See  above,  p.  133, 
2See  pp.  158-159. 


148  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

naval  forces  of  the  United  States,  or  of  the  militia  thereof,  for 
the  purpose  of  taking  possession  of  and  detaining  any  such  vessel, 
with  her  prizes,  if  any,  in  order  to  the  execution  of  the  prohibi- 
tions and  penalties  of  this  Title,  and  to  the  restoring  of  such  prizes 
in  the  cases  in  which  restoration  shall  be  adjudged;  and  also  for 
the  purpose  of  preventing  the  carrying  on  of  any  such  expedi- 
tion or  enterprise  from  the  territories  or  jurisdiction  of  the  United 
States  against  the  territories  or  dominions  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people  with  whom  the 
United  States  are  at  peace. 

Jurisdiction  of  Secs.    5281    to    5286    define   the    acts    which    shall    be    considered 

District  Courts.  offenses  against  the  neutrality  laws  of  the  United  States,  and  provide 
the  appropriate  penalties.  The  succeeding  sections,  owing  to  their 
passage  at  different  periods,  are  not  arranged  in  logical  order,  and 
with  the  exception  of  the  last  section  they  are  directed  partly  towards 
the  enforcement  of  the  provisions  of  Secs.  5281  to  5286,  and  partly 
towards  the  vindication  of  the  sovereign  rights  of  the  United  States 
as  a  neutral  state.  In  this  latter  respect  they  relate  to  the  obligations 
of  the  United  States  in  its  direct  relations  with  belligerent  states,  and 
not  to  the  repression  of  acts  of  individuals  committed  within  its  juris- 
diction. The  first  sentence  of  Sec.  5287  formed  a  separate  section  in 
the  Acts  of  1794  and  1818.  The  justification  for  giving  jurisdiction 
to  the  District  Courts  in  such  cases  has  been  sufficiently  set  forth  in 
Chapter  III.^  It  was  likewise  shown  that  there  were  other  cases  in 
which  jurisdiction  was  assumed  by  the  District  Courts  independently 
of  any  special  grant  of  jurisdiction  from  Congress.  Prizes  captured  by 
vessels  which  had  been  fitted  out  and  armed,  or  which  had  increased 
their  force,  within  the  territory  of  the  United  States  were  restored 
at  the  suit  of  their  owners,  on  the  ground  that  whether  or  not  the 
capture  was  valid  as  between  the  captor  and  the  owner,  it  was  incum- 
bent upon  the  United  States  as  a  neutral  state  to  divest  possession  of 
property  acquired  as  the  result  of  a  violation  of  its  sovereignty.  There 
has  never  been  any  question  as  to  the  propriety  of  the  jurisdiction 
thus  assumed  by  the  District  Courts  under  the  power  given  them  by 
the  Judiciary  Act  of  1789  to  act  as  courts  of  admiralty.  It  seems 
clear  that  by  analogy  the  courts  could  equally  well  undertake  to  restore 
prizes  captured  by  vessels  which  had  merely  been  sold  to  belligerents 
within  the  territory  of  the  United  States,  should  a  law  be  passed  by 
Congress  forbidding  the  sale  of  vessels  to  belligerents.  For  if  the 
object  of  forbidding  the  sale  within  the  jurisdiction  of  the  United 

iSee  above,  pp.  88-90. 


dicial  procedure. 


DEFICIENCIES   OF   THE    NEUTRALITY    LAWS  149 

States  of  a  war-ship  to  a  belligerent  is  to  prevent  the  departure  from 
the  ports  of  the  United  States  of  an  instrument  of  war  none  the  less 
formidable  to  the  other  belligerent  because  the  sale  has  been  upon  a 
strictly  commercial  basis,  it  would  appear  that  jurisdiction  might  be 
equally  well  taken  over  prizes  captured  by  any  such  vessels  which 
have  come  into  the  possession  of  the  belligerent  by  a  violation  of  the 
laws  of  the  United  States. 

The  second  and  concluding  sentence  of  Sec.  5287,  which  likewise  Executive  action 
formed  a  separate  section  in  the  Acts  of  1794  and  1818,  confers  upon  ^y°^\^  ^^"^'^  ^^' 
the  President  the  power  to  employ  the  land  and  naval  forces  of  the 
United  States  for  the  purpose  of  enforcing  the  provisions  of  the  act 
in  cases  in  which  the  officers  of  the  courts  would  probably  not  be  com- 
petent to  do  so.  The  case  of  Gelston  v.  Hoyt,^  referred  to  in  Chap- 
ter IIP  as  setting  forth  the  circumstances  under  which  the  seizure 
of  a  vessel  by  subordinate  officers  of  the  executive  power  would  be 
justifiable,  suggests  certain  defects  in  the  original  drafting  of  this 
sentence.  In  that  case  it  was  held  that  the  authority  given  to  the 
President  by  the  act  to  employ  the  military  and  naval  forces  of  the 
United  States  for  the  purposes  mentioned  did  not  justify  him  in  call- 
ing upon  the  civil  officers  of  the  government  for  the  same  purpose, 
and  that  the  power  given  him  was  intended  to  be  exercised  only  when 
the  ordinary  process  of  the  courts  should  prove  ineffectual  to  prevent 
violations  of  the  law.  It  was  likewise  pointed  out  in  Chapter  III 
that  the  inference  from  this  decision  would  seem  to  be  that  executive 
action  must  follow  judicial  procedure,  and  that  a  warrant  must  first 
issue  from  the  courts  for  the  arrest  of  offenders  against  the  act  or  for 
the  seizure  of  the  vessel  alleged  to  be  forfeited,  and  such  warrant  be 
disobeyed  or  resisted  before  it  is  lawful  for  the  President  to  employ 
the  military  or  naval  forces  of  the  United  States.  Accordingly,  it 
is  suggested  that  it  would  be  advisable  to  amend  Sec.  5287  to  that 
effect. 

Sec.  5288  reads  as  follows: 

It  shall  be  lawful  for  the  President,  or  such  person  as  he  shall 
empower  for  that  purpose,  to  employ  such  part  of  the  land  or 
naval  forces  of  the  United  States,  or  of  the  militia  thereof,  as 
shall  be  necessary  to  compel  any  foreign  vessel  to  depart  the 
United  States  in  all  cases  in  which,  by  the  laws  of  nations  or  the 
treaties  of  the  United  States,  she  ought  not  to  remain  within  the 
United  States. 

13  Wheat.,  246. 
^See  above,  p.  91. 


150  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Power  of  Presi-  The  fact  that  this  section  deals  with  the  neutral  duties  of  the  United 
States  in  cases  requiring  state  action  against  the  belligerent  states 
themselves  sufficiently  explains  the  lack  of  definiteness  in  its  provi- 
sions. Sees.  5281  to  5286,  defining  the  acts  of  individuals  which 
the  United  States  as  a  neutral  state  is  under  obligation  to  prevent, 
were  necessarily  framed  with  the  precision  of  criminal  laws.  The 
present  section  is  not  penal  in  character,  and  merely  empowers  the 
President  to  call  the  land  and  naval  forces  of  the  United  States  to  his 
aid  when  necessary  to  vindicate  the  rights  and  to  fulfill  the  duties  of 
the  United  States  in  those  matters  in  which  executive  action  is  called 
for,  leaving  it  to  him  to  decide  when  the  obligations  of  the  United 
States,  as  imposed  by  international  law  or  by  treaties,  require  such 
steps  to  be  taken.  It  will  be  observed,  therefore,  that  in  certain  cases 
involving  the  public  vessels  of  a  belligerent  a  two-fold  action  on  the 
part  of  the  government  is  required  to  maintain  the  neutrality  of  the 
United  States.  On  the  one  hand  the  judicial  department  of  the  gov- 
ernment is  required  to  prosecute  individuals  who  assist  in  augmenting 
the  force  of  such  vessels  [Sec.  5285],  and  on  the  other  hand  the  ex- 
ecutive department  of  the  government  is  called  upon  to  take  action 
against  the  vessels  themselves  to  prevent  them  from  violating  the 
law. 
Obligation  under  It  was  pointed  out  in  Chapter  III  that  the  word  "treaties"  in  this 
former  treaties  section  had  special  reference  to  the  Treaty  of  1778  between  the  United 
States  and  France.  With  the  abrogation  of  this  treaty,  in  1798,  the 
United  States  ceased  to  be  under  any  treaty  obligation  to  compel  for- 
eign vessels  to  leave  the  United  States  under  stipulated  circumstances. 
The  obligation  to  compel  their  departure  under  the  rules  of  interna- 
tional law,  as  then  understood,  still  remained.  This  obligation  has 
now  been  rendered  precise  by  the  adoption  by  the  Second  Hague  Con- 
ference of  definite  rules  regulating  the  asylum  to  be  given  in  neutral 
ports  to  the  public  vessels  of  a  belligerent  power. 
New  rules  of  These  rules  are  contained  in  Arts.  9  to  24  of  the  Convention  re- 

asylum,  lating'  to  the  Rights  and  Duties  of  Neutral  Powers  in  Maritime  War. 

Arts.  17  to  20  were  explained  above^  in  connection  with  the  augmen- 
tation of  the  force  of  belligerent  vessels  of  war  in  neutral  ports.  Art. 
9  imposes  upon  the  neutral  state  the  duty  of  forbidding  the  entrance 
into  its  ports  of  belligerent  vessels  which  have  failed  to  conform  to  the 
regulations  imposed  upon  them  or  which  have  violated  the  neutrality 
of  the  neutral  state.  Art.  10  provides  that  the  neutrality  of  a  Power 
is  not  compromised  by  the  mere  passage  through  its  territorial  waters 

^See  above,  pp.  144-145. 


DEFICIENCIES   OF   THE    NEUTRALITY   LAWS  151 

of  war-ships  or  prizes  belonging  to  belligerents.  Art.  11  allows  a  neu- 
tral Power  to  permit  its  licensed  pilots  to  be  employed  by  belligerent 
war-ships.  Arts.  12  and  14  repeat  the  rule  contained  in  the  British 
instructions  of  1862,  and  in  the  proclamation  of  President  Grant  of 
1870,  that  war  vessels  of  belligerent  powers  may  not  remain  in  neutral 
ports  more  than  twenty-four  hours  except  in  case  of  damage  or  stress 
of  weather.  Art.  13  requires  the  neutral  state,  on  being  informed  of 
the  outbreak  of  hostilities,  to  notify  belligerent  war-ships  to  depart 
within  twenty-four  hours  or  within  the  time  prescribed  by  the  law 
of  the  neutral  state.  Art.  15  provides  that  in  the  absence  of  special 
provisions  in  the  law  of  the  neutral  state  no  more  than  three  war- 
ships of  a  belligerent  may  be  at  the  same  time  in  the  ports  of  a  neutral 
state.  Art.  16  prescribes  regulations  for  the  order  of  departure,  and 
the  interval  between  their  departure,  when  war-ships  of  both  belliger- 
ents are  present  simultaneously  in  a  neutral  port.  Arts  21,  22  and  23^ 
regulate  the  conditions  under  which  prizes  taken  by  a  belligerent  may 
be  given  asylum  in  neutral  ports.  Art.  24  authorizes  the  neutral  state 
to  take  measures  to  incapacitate  belligerent  war-ships  which  do  not 
leave  a  port  in  which  they  are  not  entitled  to  remain.  Art.  25  of  the 
same  convention  makes  it  the  duty  of  the  neutral  state  to  "exercise 
such  vigilance  as  the  means  at  its  disposal  permit  to  prevent  any  vio- 
lation of  the  above  articles  occurring  in  its  ports  or  roadsteads,  or  in 
its  waters." 

In  view  of  the  fact  that  Arts.  9  to  24  as  a  body  were  not  unani-  Present  obliga- 
mously  accepted  by  the  powers,  they  cannot  be  said  as  yet  to  con-  ^'°"  under 
stitute  international  law,  since  the  provisions  of  the  convention  are 
applicable  only  to  the  contracting  powers,  and  only  if  both  the  bel- 
ligerents are  parties  to  the  convention  [Art.  28].-  Accordingly,  while 
retaining  in  Sec.  5288  the  word  "treaties"  to  enable  the  President  to 
meet  any  obligations  which  the  United  States  may  incur  under  treaty 
with  individual  nations,  it  is  advisable  to  insert  after  "treaties"  the 
word  "conventions"  to  enable  the  President  to  compel  foreign  vessels 
to  depart  from  the  United  States  in  the  cases  provided  for  by  the 

iln  adhering,  in  November,  1910,  to  the  Convention  relating  to  the  Rights 
and  Duties  of  Neutral  Powers  in  Maritime  War,  the  United  States  made  reser- 
vation of  Art.  23. 

2It  may  be  observed  that  the  rules  embodied  in  Arts.  9-24  of  the  Conven- 
tion relating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Maritime  War 
were  more  or  less  generally  observed  previously  to  the  adoption  of  that  con- 
vention ;  and  to  the  extent  to  which  they  were  so  observed  they  would  continue 
to  form  part  of  international  law,  independently  of  the  adoption  of  the  said 
convention. 


'treaties. 


152 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Power  to  detain 
vessels. 


Convention  relating  to  the  Rights  and  Duties  of  Neutral  Powers  in 
Maritime  War. 

There  is  no  provision  in  Sec.  5288  empowering  the  President  to  em- 
ploy the  military  and  naval  forces  of  the  United  States  for  the  pur- 
pose of  detaining  foreign  public  vessels  which,  by  the  rules  of  inter- 
national law  or  the  treaties  and  conventions  of  the  United  States, 
should  not  be  allowed  to  depart  from  the  United  States  in  time  of  war. 
But  it  has  just  been  seen  that  the  Convention  relating  to  the  Rights 
and  Duties  of  Neutral  Powers  in  Maritime  War  imposes  upon  neutral 
states  the  duty  of  preventing  the  departure  from  their  ports  of  a  bel- 
ligerent war-ship  until  a  period  of  twenty-four  hours  has  elapsed  since 
the  prior  departure  of  a  war-ship  belonging  to  the  enemy  or  of  a  mer- 
chant ship  flying  the  enemy  flag  [Arts.  16,  25].  Likewise,  neutral 
states  must  detain  and  dismantle  a  belligerent  war-ship  which,  not- 
withstanding the  notification  of  a  neutral  state,  has  not  left  a  port 
in  which  it  has  no  right  to  remain  [Art.  24].  In  this  latter  case  the 
officers  and  crew  of  the  belligerent  ship  must  likewise  be  detained. 
Further,  since  Art.  3  of  the  same  convention  makes  it  the  duty  of  the 
neutral  power  to  effect  the  release  of  any  prize,  together  with  its 
officers  and  crew,  which  may  have  been  captured  within  the  jurisdic- 
tion of  the  United  States  and  is  still  therein,  it  is  necessary  to  include 
the  fulfilment  of  that  duty  as  one  of  the  purposes  for  which  the  Presi- 
dent may  be  allowed  to  employ  the  military  and  naval  forces  of  the 
United  States.  It  is  true  that  the  District  Courts  may  assume  jurisdic- 
tion over  such  prizes  at  the  suit  of  the  owners  of  the  captured  vessel, 
but  Art.  3  evidently  contemplates  more  prompt  and  direct  action  on 
the  part  of  the  neutral  government. 

Sec.  5289  reads  as  follows: 


Statute  directed 
against    privateer- 
ing. 


The  owners  or  consignees  of  every  armed  vessel  sailing  out 
of  the  ports  of  the  United  States,  belonging  wholly  or  in  part  to 
citizens  thereof,  shall,  before  clearing  out  the  same,  give  bond 
to  the  United  States,  with  sufficient  sureties,  in  double  the  amount 
of  the  value  of  the  vessel  and  cargo  on  board,  including  her  arma- 
ment, conditioned  that  the  vessel  shall  not  be  employed  by  such 
owners  to  cruise  or  commit  hostilities  against  the  subjects,  citi- 
zens, or  property  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people,  with  whom  the  United  States  are  at  peace. 

The  provisions  of  this  section  were  evidently  directly  aimed  to  pre- 
vent privateering.  The  bond  required  merely  secures  or  attempts  to 
secure  that  the  armed  vessel  will  not  be  used  by  the  owners  them- 


DEFICIENCIES   OF   THE    NEUTRALITY   LAWS  153 

selves  to  commit  hostilities  against  a  friendly  state.  No  attempt  was 
made  to  prevent  the  vessel  from  passing  into  the  hands  of  a  belliger- 
ent, by  sale  or  otherwise,  once  it  should  have  left  port,  and  no  check 
at  all  was  placed  upon  the  departure  of  armed  vessels  belonging  to  the 
citizens  of  another  state,  provided  such  vessels  left  port  as  they  came 
in,  without  the  addition  of  any  equipment  for  war.  But  it  has  been 
shown  at  length  in  the  earlier  part  of  this  chapter^  that  the  rules  of 
international  law  on  this  point  have  greatly  changed  since  1818.  It 
is  no  longer  sufficient  for  a  neutral  state  to  make  sure  that  hostile 
expeditions  are  not  being  fitted  out  within  its  jurisdiction  or  departing 
from  its  ports.  It  has  come  to  be  recognized  that  armed  vessels  con- 
stitute such  powerful  instruments  of  war  that,  irrespective  of  any  hos- 
tile intentions  on  the  part  of  the  owners  themselves,  such  vessels  can- 
not be  permitted  to  leave  port  under  conditions  of  prearranged  sale 
and  delivery  to  a  belligerent,  without  thereby  making  the  neutral  port 
a  base  of  operations  for  the  belligerent  and  thus  compromising  the 
neutrality  of  the  neutral  state.  Accordingly,  it  is  incumbent  upon 
the  United  States  as  a  neutral  state  to  require  that  the  owners  or  con- 
signees of  armed  vessels  about  to  sail  from  its  ports  shall  enter  into 
bond  to  the  United  States  and  give  satisfactory  proof  that  the  vessel 
is  not  leaving  port  under  a  contract  or  agreement  entered  into  by  the 
owners  or  consignees  for  the  sale  or  delivery  of  the  vessel  to  a  bel- 
ligerent power,  whether  within  the  territorial  waters  of  the  United 
States,  or  on  the  high  seas,  or  in  a  foreign  port.  Nothing  else  than  a 
bona  fide  contract  for  the  delivery  of  the  vessel  to  a  neutral  govern- 
ment should  be  considered  as  satisfactory  proof  of  a  neutral  des- 
tination.^ 

If  it  be  suggested  that  in  consideration  of  the  Declaration  of  Paris  Privateering  un- 
of  1856,  by  which  the  practice  of  privateering  is  declared  to  be  abol-  "^^  forms, 
ished,  the  present  terms  of  Sec.  5289  need  no  longer  be  retained,  it  is 
necessary  to  observe  that  the  United  States  has  never  given  its  formal 
adhesion  to  the  Declaration  of  Paris,  although  it  announced  its  inten- 
tion to  abide  by  it  during  the  war  with  Spain  in  1898.  The  United 
States  has  likewise  refused  to  sign  the  Convention  relative  to  the 
Conversion  of  Merchant  Ships  into  War-ships,  adopted  by  the  Second 
Hague  Peace  Conference  of  1907,  which  was  intended  to  prevent  the 
recurrence  of  privateering.  Moreover,  even  had  the  United  States 
given  its  adherence  to  the  Declaration  of  Paris  and  to  the  above  con- 
vention,  it  would  still   remain  necessary  to  prevent  the  owners  of 

iSee  above,  pp.  115-120. 
2See  above,  p.  139. 


154 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Arming    merchant 
vessels  for  self- 
defense. 


armed  vessels  from  leaving  American  ports  to  join  the  volunteer  fleet 
of  a  belligerent.^  Practically  all  that  the  Convention  relative  to  the 
Conversion  of  Merchant  Ships  into  War-ships  accomplished  was  to 
place  a  merchant  ship  which  has  been  converted  into  a  war-ship  under 
the  "direct  authority,  immediate  control  and  responsibility  of  the 
Power  whose  flag  it  flies"  [Art.  1],  and  to  require  that  the  fact  of 
such  conversion  be  announced  by  the  belligerent  on  the  list  of  the 
ships  of  its  military  fleet  [Art.  6].  There  is  nothing  in  the  conven- 
tion to  prevent  the  owner  of  a  merchant  vessel,  within  the  jurisdiction 
of  the  United  States,  from  arming  his  vessel  and  offering  to  place  it. 
under  the  conditions  imposed  by  the  convention,  at  the  disposal  of  a 
foreign  belligerent  in  consideration  for  certain  bounties  offered  by  the 
latter.  It  is  true  that  it  is  somewhat  improbable  in  these  modern 
times,  when  maritime  warfare  involves  considerably  more  danger  than 
in  the  period  preceding  1856,  that  American  citizens  would  be  willing 
to  place  themselves  and  their  ships  at  the  disposal  of  a  foreign  bellig- 
erent power,  but  the  case  is  at  least  possible  and  should  be  provided 
against. 

On  March  27,  1913,  Mr.  Churchill,  during  a  speech  in  the  British 
House  of  Commons  upon  the  Nav}'-  estimates,  announced  that  the 
Admiralty  proposed  to  encourage  British  ship  owners  to  provide  for 
the  defense  of  their  vessels  in  time  of  war  by  lending  them  guns,  fur- 
nishing them  with  ammunition,  and  training  gun  crews  for  them,  pro- 
vided the  ship  owners  would  pay  for  the  necessary  structural  altera- 
tions of  their  ships.  The  idea  of  Mr.  Churchill  was  apparently  not 
to  arm  merchant  ships  for  purposes  of  aggressive  action  in  the  event 


^The  first  rule  of  the  Declaration  of  Paris  that  "privateering  is  and  remains 
abolished"  still  left  unsettled  many  questions  relating  to  the  subject  of  vol- 
unteer navies.  The  Convention  relating  to  the  Conversion  of  Merchant  Ships 
into  War-ships  laid  down  a  number  of  rules  defining  the  legal  conditions 
which  must  be  observed  by  a  belligerent  in  making  such  conversions,  but  the 
powers  were  unable  to  come  to  an  agreement  upon  the  question  whether  the 
conversion  of  a  merchant  ship  into  a  war-ship  might  take  place  upon  the  high 
seas.  It  was,  however,  recognized  as  unquestionable  that  such  a  conversion 
could  not  take  place  in  a  neutral  port  without  a  violation  both  of  the  duties 
of  the  neutral  state  towards  the  belligerents  and  of  the  duties  of  the  bellig- 
erents towards  the  neutral. 

In  1870,  during  the  Franco-Prussian  war,  the  Prussian  government  issued 
a  decree  ordering  the  creation  of  a  volunteer  navy  to  be  composed  of  private 
vessels  whose  owners  were  offered  large  premiums  for  the  destruction  of 
French  ships  of  war.  Although  the  fact  that  the  purpose  of  the  volunteer 
navy  was  the  destruction  of  enemy  war-ships  distinguishes  such  a  project  from 
privateering,  which  aims  mainly  at  the  capture  of  the  private  property  of  the 
enemy,  and  although  the  ofi^er  of  the  Prussian  government  was  later  with- 
drawn, the  instance  shows  that  it  is  not  impossible  that  practices  closely  sim- 
ilar to  privateering  may  be  resorted  to  in  spite  of  the  Declaration  of  Paris. 
See  Holtzendorff,  Handbuch  des  Volkerrechts,  IV,  560;  Hall,  Int.  Law.,  520-521. 


DEFICIENCIES    OF   THE    NEUTRALITY   LAWS  155 

of  war,  but  to  enable  the  larger  merchantmen  to  protect  themselves. 
While  the  proposal  has  a  different  object  in  view  from  that  contem- 
plated in  the  creation  of  a  volunteer  fleet,  and  while  it  in  no  way 
resembles  the  practice  of  privateering,  it  is  further  evidence  to  show 
that  the  role  that  vessels  originally  built  for  commercial  purposes  have 
played  in  time  of  war  has  not  yet  become  obsolete. 

Sec.  5290  reads  as  follows : 

The  several  collectors  of  the  customs  shall  detain  any  vessel 
manifestly  built  for  warlike  purposes,  and  about  to  depart  the 
United  States,  the  cargo  of  which  principally  consists  of  arms 
and  munitions  of  war,  when  the  number  of  men  shipped  on  board, 
or  other  circumstances,  render  it  probable  that  such  vessel  is  in- 
tended to  be  employed  by  the  owners  to  cruise  or  commit  hos- 
tilities upon  the  subjects,  citizens,  or  property  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people  with  whom 
the  United  States  are  at  peace,  until  the  decision  of  the  President 
is  had  thereon,  or  until  the  owner  gives  such  bond  and  security 
as  is  required  of  the  owners  of  armed  vessels  by  the  preceding 
section. 

Like  the  preceding  section,  this  section  is  inadequate  to  meet  the  New  conditions  of 
demands  of  international  law  of  the  present  day.  It  provides  for  detention, 
detention  of  a  vessel  only  in  cases  where  it  is  probable  that  the  owners 
themselves  of  the  vessel  will  employ  it  to  commit  hostilities  against  a 
friendly  state.  Its  terms  therefore  should  be  extended  to  cover  the 
same  ground  as  that  which  Sec.  5289  must  be  made  to  cover.  The 
conditions  relating  to  the  cargo  and  to  the  number  of  men  shipped  on 
board  should  be  omitted,  and  the  specification  of  a  "vessel  manifestly 
built  for  warlike  purposes"  should  be  changed  to  a  "war-ship,  or  vessel 
built  primarily  for  use  in  war,  or  other  vessel  which,  being  originally 
commercial,  has,  by  the  addition  of  armament,  been  adapted  within 
or  without  the  territory  or  jurisdiction  of  the  United  States  for  use  in 
war,"  so  that  the  section  may  receive  the  same  interpretation  as  the 
preceding  one.  The  proof  of  neutral  destination,  which  it  was  shown 
should  be  required  by  Sec.  5289,  should  be  made  one  of  the  conditions 
on  which  release  of  the  vessel  is  made  dependent.  In  short,  Sec.  5290 
should  simply  provide  for  the  detention  of  vessels  until  they  have 
fulfilled  the  obligations  imposed  by  Sec.  5289. 

Sec.  5291  reads  as  follows : 

The  provisions  of  this  Title  shall  not  be  construed  to  extend  to 
any  subject  or  citizen  of  any  foreign  prince,  state,  colony,  dis- 


156 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Exception  not 
warranted  by 
present   law   of 
neutral  duty 


trict,  or  people  who  is  transiently  within  the  United  States,  and 
[enlist]  [enlists]  or  enters  himself  on  board  of  any  vessel  of  war, 
letter  of  marque,  or  privateer,  which  at  the  time  of  its  arrival 
within  the  United  States  was  fitted  and  equipped  as  such,  or  hires 
or  retains  another  subject  or  citizen  of  the  same  foreign  prince, 
state,  colony,  district,  or  people,  who  is  transiently  within  the 
United  States,  to  enlist  or  enter  himself  to  serve  such  foreign 
prince,  state,  colony,  district,  or  people,  on  board  such  vessel  of 
war,  letter  of  marque,  or  privateer,  if  the  United  States  shall  then 
be  at  peace  with  such  foreign  prince,  state,  colony,  district,  or 
people.  Nor  shall  they  be  construed  to  prevent  the  prosecution 
or  punishment  of  treason,  or  of  any  piracy  defined  by  the  laws  of 
the  United  States. 

The  first  and  second  sentences  of  this  section  have  no  intrinsic  con- 
nection and  must  be  considered  independently  of  each  other.  It  was 
pointed  out  in  Chapter  IIP  that  the  first  sentence  figured  as  a  proviso 
to  Sec.  2  of  the  original  Act  of  1794,  and  that  the  framers  of  that  act 
considered  that  they  were  justified  in  appending  to  the  law  against 
enlistments  in  the  service  of  a  foreign  state,  an  exception  in  favor  of 
the  subjects  of  such  state  who  owed  allegiance  to  it.  That  the  exception 
was  in  keeping  with  the  rules  of  international  law  of  that  day  is  hardly 
open  to  question,  but  at  the  present  day  it  would  seem  to  be  no  longer 
justifiable.  Jefiferson  himself  stated  that  the  exception  was  a  purely 
voluntary  concession  on  the  part  of  the  neutral  state.  In  a  letter  of 
August  16,  1793,  to  the  United  States  minister  to  France,  Jefferson 
maintained  that  "the  right  of  raising  troops  being  one  of  the  rights 
of  sovereignty,  and  consequently  appertaining  exclusively  to  the 
nation  itself,  no  foreign  power  or  person  can  levy  men  within  its  ter- 
ritory without  its  consent."^  The  fact  that  the  troops  thus  raised 
should  happen  to  be  subjects  of  the  foreign  power,  and  only  transiently 
within  the  neutral  state,  would  not  affect  the  principle  that  to  enlist 
them  without  the  consent  of  the  neutral  state  would  be  to  violate  its 
sovereignty.^  That  a  neutral  state  might  not  be  justified  in  giving  its 
consent  to  belligerent  powers  to  enlist  even  their  own  subjects  in  the 
ports  of  the  neutral  state  was  a  question  of  such  little  importance  in 
comparison  with  the  prevention  of  enlistments  in  general,  that  it  did 
not  apparently  occur  to  the  framers  of  the  Act  of  1794  that  they  were 
making   a  concession   inconsistent   with  the   principles   expressed   in 

^See  above,  p.  99. 

Mm.  State  Papers,  For.  Rel,  I,  168. 

3The  principle  is,  of  course,  entirely  distinct  from  that  involved  in  the  right 
of  subjects  of  a  foreign  power  to  leave  the  neutral  state  with  the  object  of 
enlisting  in  the  service  of  their  country  when  they  have  arrived  abroad. 


DEFICIENCIES   OF    THE    NEUTRALITY   LAWS  157 

Sec.  4  of  that  act  [Revised  Statutes,  Sec.  5285].  A  substantial  in- 
crease of  the  crew  of  a  belHgerent  vessel  might,  in  many  cases,  be  just 
as  important  an  augmentation  of  her  force  as  the  addition  of  new  guns 
or  of  "equipment  solely  applicable  to  war."^  If  this  be  so,  then  the  in- 
jury to  the  other  belligerent  would  not  be  lessened  by  the  circumstance 
that  the  persons  enlisted  as  members  of  the  crew  should  happen  to  be 
subjects  of  the  power  in  whose  service  they  were  enlisted  while  in  the 
neutral  port.  Here  again,  the  controversy  between  Great  Britain  and 
the  United  States,  growing  out  of  the  Civil  War,  resulted  in  securing  a 
more  precise  definition  of  neutral  duty.  The  second  rule  of  the  Treaty 
of  Washington  makes  it  the  duty  of  a  neutral  government  "not  to 
permit  or  suffer  either  belligerent  to  make  use  of  its  ports  or  waters 
.  .  .  for  the  recruitment  of  men."  No  exception  is  mentioned  in 
favor  of  subjects  of  the  belligerent  power,  whether  permanently  or 
only  transiently  resident  in  the  neutral  state.  Art.  18  of  the  Conven- 
tion relating  to  the  Rights  and  Duties  of  Neutral  Powers  in  Maritime 
War  represents  a  general  acceptance  on  the  part  of  nations  of  the 
principles  embodied  in  the  second  rule  of  the  Treaty  of  Washington. 
Accordingly,  it  would  seem  that  the  first  sentence  of  Sec.  5291  is  no 
longer  consistent  with  international  law  of  the  present  day,  and  should 
therefore  be  repealed. 

The  concluding  sentence  of  Sec.  5291  should,  however,  be  retained.  Treason  contem- 
It  formed  a  separate  section  in  the  Acts  of  1794  and  1818,  and  while  ^'fif  pog^g^bif  ^^"^^ 
it  is  less  likely  to  be  called  into  operation  at  the  present  day  than 
formerly,  it  provides  for  cases  which  may  still  arise.  It  is  possible 
that  a  citizen  of  the  United  States  might  enlist  in  the  naval  or  land 
forces  of  a  state  at  war  with  the  United  States,  or  build,  fit  out,  arm, 
etc.,  a  vessel  to  be  used  in  the  service  of  such  state,  and  while  vio- 
lating the  neutrality  laws  of  the  United  States  by  reason  of  the  fact 
that  the  act  was  done  within  the  jurisdiction  of  the  United  States, 
at  the  same  time  be  guilty  of  treason  in  levying  war  against  the 
United  States  or  giving  aid  and  comfort  to  its  enemies. 

With  respect  to  the  crime  of  "piracy"  referred  to  in  this  sentence,  Piracy  merged 
it  may  be  said  that  cases  which  might  have  arisen  under  Sec.  9  of  the  '"*°  treason. 
Act  for  the  Punishment  of  Certain  Crimes  against  the  United  States, 
passed  in  1790,^  would  at  the  present  day  be  merged  into  the  crime 
of  treason.     Now  that  governments  have  abandoned  the  practice  of 
issuing  letters  of  marque  and  reprisal  to  private  individuals,  author- 

iThis  fact  was  recognized  in  subsequent  decisions  of  the  courts.     See  above 
p.  81. 

2See  above,  p.  100. 


158 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


izing  them  to  make  captures  of  the  private  vessels  of  citizens  of  an- 
other state  by  way  of  reprisal  for  injuries  received  from  that  state,  it 
is  scarcely  possible  that  a  citizen  of  the  United  States  could,  by  com- 
mitting depredations  upon  the  commerce  of  the  United  States,  become 
guilty  of  piracy  under  Revised  Statutes,  Sec.  5373  [Sec.  9  of  the  Act 
of  1790]  at  a  time  when  there  was  no  actual  war  between  the  United 
States  and  the  foreign  state  from  which  he  held  a  commission.  If 
war  were  in  progress,  the  act  would  become  one  of  treason,  and  could 
be  punished  accordingly. 

In  addition  to  the  foregoing  sections  of  the  Revised  Statutes,  there 
has  recently  been  enacted  a  joint  resolution  which  may  be  regarded 
as  an  amendment  to  the  Act  of  1818.  This  joint  resolution,  of  March 
14,  1912,  provides: 

That  whenever  the  President  shall  find  that  in  any  American 
country  conditions  of  domestic  violence  exist  which  are  promoted 
by  the  use  of  arms  or  munitions  of  war  procured  from  the  United 
States,  and  shall  make  proclamation  thereof,  it  shall  be  unlawful 
to  export  except  under  such  limitations  and  exceptions  as  the 
President  shall  prescribe  any  arms  or  munitions  of  war  from  any 
place  in  the  United  States  to  such  country  until  otherwise  ordered 
by  the  President  or  by  Congress. 

Sec.  2.  That  any  shipment  of  material  hereby  declared  unlaw- 
ful after  such  a  proclamation  shall  be  punishable  by  fine  not  ex- 
ceeding ten  thousand  dollars,  or  imprisonment  not  exceeding  two 
years,  or  both. 


Special  circum- 
stance of  contra- 
band trade  across 
frontier. 


It  will  be  observed  that  the  terms  of  this  resolution  leave  it  to  the 
discretion  of  the  President  to  determine  the  circumstances  under  which 
all  export  commerce  with  any  American  country  in  arms  and  muni- 
tions of  war  is  forbidden  to  the  citizens  of  the  United  States.  This 
conditional  restriction  of  the  most  important  contraband  trade  may  ap- 
pear at  first  sight  contrary  to  the  rule  of  international  law  that  neutral 
states  are  under  no  international  obligation  to  restrict  ordinary  com- 
merce in  contraband  on  the  part  of  their  citizens.  But  it  has  been 
pointed  out  above^  that  a  belligerent,  whose  territory  borders  upon 
that  of  a  neutral,  might,  by  storing  sapplies  in  a  neutral  town  on  the 
frontier  and  drawing  upon  them  at  will,  practically  convert  the  neutral 
town  into  a  base  of  operations  for  its  armies.  In  other  words,  the  fact 
that  the  neutral  and  belligerent  countries  are  contiguous  may  create 
such  changed  conditions  as  to  overrule  the  application  of  the  principle 
of  the  freedom  of  contraband  trade.     Contraband  commerce  carried 


^See  above,  p.  105. 


DEFICIENCIES   OF   THE    NEUTR.\L1TY    LAWS  159 

on  between  the  ports  of  a  neutral  state  and  those  of  a  belligerent 
affords,  as  a  rule,  an  opportunity  for  the  other  belligerent  to  capture 
the  contraband  goods  on  the  high  seas.  Where  contraband  commerce 
by  land  is  carried  on  across  the  boundary  line  of  a  belligerent  and  a 
neutral  state,  there  is  no  opportunity  for  the  other  belligerent  to  inter- 
cept such  commerce  unless  he  is  in  actual  military  occupation  of  the 
enemy  country.  There  is,  of  course,  no  international  obligation  upon 
the  neutral  state  to  prohibit  all  commerce  in  arms  and  munitions  of 
war  between  its  citizens  and  a  neighboring  belligerent,  as  the  United 
States  has  done  by  the  resolution  of  March  14,  1912.  But  while  the 
resolution  goes  somewhat  beyond  the  demands  of  the  international 
obligations  of  the  United  States,  at  the  same  time  its  terms  enable 
the  United  States  to  fulfill  the  duty  of  preventing  towns  along  its 
border  from  becoming  centers  of  military  supplies  for  a  belligerent 
across  the  boundary  line.  The  objection  against  imposing  this  duty 
upon  neutral  states  is  not  that  it  is  not  based  upon  sound  principles 
of  neutral  obligation,  but  rather  that  it  requires  the  neutral  state 
to  determine  when  the  contrabrand  commerce  from  a  given  center  is 
being  carried  on  upon  so  large  a  scale  and  in  so  organized  a  manner 
as  to  constitute  the  center  a  base  of  military  supplies.  That  this  is  an 
obligation  which  a  neutral  state  will  not  willingly  assume  may  be 
conceded;  but  there  can  be  no  question  that  it  is  in  accord  with  the 
true  principles  of  neutrality.  In  the  case  of  the  United  States,  it  will 
be  observed  that  the  terms  of  the  resolution  of  1912  contemplate 
conditions  of  domestic  violence  which  may  not  yet  have  reached  a  state 
of  organized  warfare ;  but  they  are  none  the  less  applicable  to  a  situa- 
tion in  which  the  insurgents,  by  reason  of  numbers  and  organiza- 
tion, may  obtain  recognition  as  belligerents,  so  that  the  international 
law  of  neutrality  would  come  to  have  application. 


DRAFT  OF  AN  AMENDED  NEUTRALITY  ACT. 

[Remark:  This  draft  is  made  upon  the  principle  that  while  the  Neutrality- 
Act  of  1818  (the  present  law  of  the  United  States  on  the  subject)  is  ad- 
mittedly defective,  it  is  advisable  to  introduce  such  additional  provisions  as  are 
needed  without  departing  further  than  is  necessary  from  the  form  of  that  Act^ 
except  to  repeal  such  of  its  provisions  as  have  no  longer  any  application  or 
are  inconsistent  with  the  obligations  of  the  United  States  under  the  present  law 
of  nations.] 


Act  of  1818. 

Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the  Uni- 
ted States  of  America,  in  Congress  as- 
sembled, That  if  any  citizen  of  the 
United  States  shall,  within  the  territory 
or  judisdiction  thereof,  accept  and  ex- 
ercise a  commission  to  serve  a  foreign 
prince,  state,  colony,  district,  or  people, 
in  war,  by  land  or  by  sea,  against  any 
prince,  state,  colony,  district,  or  people, 
with  whom  the  United  States  are  at 
peace,  the  person  so  offending  shall  be 
deemed  guilty  of  a  high  misdemeanor, 
and  shall  be  fined  not  more  than  two 
thousand  dollars,  and  shall  be  impris- 
oned not  exceeding  three  years. 


Draft.^ 
Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the  Uni- 
ted States  of  America  in  Congress  as- 
sembled. That,  if  any  person,  whether 
citizen  of  the  United  States  or  not, 
shall,  within  the  territory  or  jurisdic- 
tion of  the  United  States,  accept  or 
agree  to  accept  a  commission  to  serve 
a  foreign  prince,  state,  colony,  district^ 
people,  or  body  of  insurgents,  in  war, 
by  land  or  by  sea,  against  any  foreign 
prince  or  state  with  whom  the  United 
States  are  at  peace,  or  against  any  for- 
eign colony,  district,  or  people,  whose 
belligerency  has  been  recognized  by  the 
United  States,  and  with  whom  they  are 
at  peace,  or  shall,  within  the  territory 
or  jurisdiction  of  the  United  States,  in- 
duce any  other  person  to  accept  any 
such  commission  to  serve  a  foreign 
prince,  state,  colony,  district,  people,  or 
body  of  insurgents,  as  aforesaid,  or 
shall,  within  the  territory  or  jurisdiction 
of  the  United  States,  issue  or  deliver 
to  any  other  person  any  such  commis- 
sion, as  aforesaid,  or  shall,  within  the 
territory  or  jurisdiction  of  the  United 
States,  exercise  a  commission  conferred 
within  or  without  the  jurisdiction  of 
the     United    States    by    any    foreign 


^Amendments  of  the  Act  of  1818  are  printed  in  italics,  except  when  merely  verbal. 


DRAFT    OF     AN     AMENDED     NEUTRALITY     ACT 


161 


prince,  state,  colony,  district,  people, 
or  body  of  insurgents,  at  zvar,  by  land 
or  sea,  against  any  foreign  prince 
or  state  ivith  whom  the  United  States 
are  at  peace,  or  against  any  for- 
eign colony,  district,  or  people,  whose 
belligerency  has  been  recognised  by  the 
United  States  and  with  whom  they  are 
at  peace,  the  person  so  offending  shall 
be  deemed  guilty  of  a  high  misde- 
meanor, and  shall  be  fined  not  more 
than  two  thousand  dollars,  and  shall  be 
imprisoned  not  exceeding  three  years. 


Sec.  2.  And  be  it  further  enacted, 
That  if  any  person  shall,  within  the  ter- 
ritory or  jurisdiction  of  the  United 
States,  enlist  or  enter  himself,  or  hire 
or  retain  another  person  to  enlist  or 
enter  himself,  or  to  go  beyond  the  lim- 
its or  jurisdiction  of  the  United  States 
with  intent  to  be  enlisted  or  entered  in 
the  service  of  any  foreign  prince,  state, 
colony,  district,  or  people,  as  a  soldier, 
or  as  a  marine  or  seaman,  on  board  of 
any  vessel  of  war,  letter  of  marque,  or 
privateer,  every  person  so  offending 
shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  ex- 
ceeding one  thousand  dollars,  and  be 
imprisoned  not  exceeding  three  years : 
Provided,  That  this  act  shall  not  be 
construed  to  extend  to  any  subject  or 
citizen  of  any  foreign  prince,  state,  col- 
ony, district  or  people,  who  shall  trans- 
iently be  within  the  United  States,  and 
shall  on  board  of  any  vessel  of  war, 
letter  of  marque,  or  privateer,  which  at 
the  time  of  its  arrival  within  the  United 
States,  was  fitted  and  equipped  as  such, 
enlist  or  enter  himself,  or  hire  or  retain 
another  subject  or  citizen  of  the  same 
foreign  prince,  state,  colony,  district, 
or  people,  who  is  transiently  within  the 
United  States,  to  enlist  or  enter  himself 
to  serve  such  foreign  prince,  state,  col- 
ony, district,  or  people,  on  board  such 
vessel  of  war,  letter  of  marque,  or  pri- 
vateer, if  the  United  States  shall  then 


Sec.  2.  And  be  it  further  enacted, 
That  if  any  person  shall,  within  the 
territory  or  jurisdiction  of  the  United 
States,  enlist  or  enter  himself,  or  hire, 
or  retain  or  induce  any  other  person  to 
enlist  or  enter  himself,  or  hire  or  re- 
tain any  other  person  to  go  beyond 
the  limits  or  jurisdiction  of  the  United 
States  with  intent  to  be  enlisted  or  en- 
tered in  the  service  of  any  foreign 
prince,  state,  colony,  district,  people,  or 
body  of  insurgents,  in  war,  by  land  or 
sea,  against  any  foreign  prince  or  state 
with  whom  the  United  States  are  at 
peace,  or  against  any  foreign  colony, 
district,  or  people,  whose  belligerency 
has  been  recognised  by  the  United 
States  and  with  whom  the  United 
States  are  at  peace,  or  shall,  within  the 
territory  or  jurisdiction  of  the  United 
States,  entice  any  other  person  to  leave 
the  United  States  under  a  false  repre- 
sentation of  the  service  in  zvhich  such 
person  is  to  be  engaged,  with  th-e  intent 
that  such  person  may,  when  outside  the 
jurisdiction  of  the  United  States,  enlist 
or  enter  himself  or  be  induced  to  enlist 
or  enter  himself  in  the  service  of  any 
foreign  prince,  state,  colony,  district, 
people,  or  body  of  insurgents,  as  afore- 
said, or  shall  within  the  territory  or 
jurisdiction  of  the  United  States,  as  the 
oivner  or  master  of  any  vessel,  know- 
ingly take  on  board  or  have  on  board 
any  person  violating  the  provisions  of 


162  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

be  at  peace  with  such  foreign  prince,      this  section,  every  person  so  offending 
state,  colony,  district,  or  people.  shall  be  deemed  guilty  of  a  high  misde- 

meanor, and  shall  be  fined  not  exceed- 
ing one  thousand  dollars,  and  be  im- 
prisoned not  exceeding  three  years. 

Sec.  3.  And  be  it  further  enacted,  Sec.  3.  And  be  it  further  enacted, 
That  if  any  person  shall,  within  the  lim-  That  if  any  person  shall,  within  the 
its  of  the  United  States,  fit  out  and  territory  or  jurisdiction  of  the  United 
arm,  or  attempt  to  fit  out  and  arm,  or  States,  build,  fit  out,  arm  or  despatch, 
procure  to  be  fitted  out  and  armed,  or  or  attempt  to  build,  fit  out,  arm,  or  des- 
shall  knowingly  be  concerned  in  the  patch,  or  agree  to  build,  iit  out,  arm,  or 
furnishing,  fitting  out,  or  arming,  of  despatch,  or  procure  to  be  built,  fitted 
any  ship  or  vessel  with  intent  that  such  out,  armed,  or  despatched,  or  shall  be 
ship  or  vessel  shall  be  employed  in  the  knowingly  concerned  in  the  building, 
service  of  any  foreign  prince  or  state,  fitting  out,  arming,  or  despatching  of 
or  of  any  colony,  district,  or  people,  to  any  ship  or  vessel  with  intent  or 
cruise  or  commit  hostilities  against  the  knowledge  or  having  reasonable  cause 
subjects,  citizens,  or  property  of  any  to  believe  that  such  ship  or  vessel  shall 
foreign  prince  or  state,  or  of  any  col-  or  zmll  be  employed  in  the  service  of 
ony,  district,  or  people,  with  whom  the  any  foreign  prince  or  state,  or 
United  States  are  at  peace,  or  shall  is-  of  any  colony,  district,  people,  or 
sue  or  deliver  a  commission  within  the  body  of  insurgents,  to  cruise  or 
territory  or  jurisdiction  of  the  United  engage  in  hostile  operations  against 
States,  for  any  ship  or  vessel,  to  the  in-  any  foreign  prince  or  state  with 
tent  that  she  may  be  employed  as  afore-  whom  the  United  States  are  at 
said,  every  person  so  offending  shall  be  peace,  or  against  any  foreign  colony, 
deemed  guilty  of  a  high  misdemeanor,  district,  or  people  zvhose  belligerency 
and  shall  be  fined  not  more  than  ten  has  been  recognised  by  the  United 
thousand  dollars,  and  imprisoned  not  States  and  with  whom  they  are  at  peace, 
mure  than  three  years ;  and  every  such  every  person  so  offending  shall  be 
ship  or  vessel,  with  her  tackle,  apparel,  guilty  of  a  high  misdemeanor,  and 
and  furniture,  together  with  all  mate-  shall  be  fined  not  more  than  ten  thou- 
rials,  arms,  ammunition,  and  stores,  sand  dollars,  and  imprisoned  not  more 
which  may  have  been  procured  for  the  than  three  years ;  and  every  such  ship 
building  and  equipment  thereof,  shall  or  vessel,  with  her  tackle,  apparel,  and 
be  forfeited ;  one  half  to  the  use  of  the  furniture,  together  with  all  materials, 
informer,  and  the  other  half  to  the  use  arms,  ammunition,  and  stores,  which 
of  the  United  States.  may  have  been  procured  for  the  build- 

ing and  equipment  thereof,  shall  be  for- 
feited; one  half  to  the  use  of  the  in- 
former, and  the  other  half  to  the  use  of 
the  United  States :  Proinded,  That  the 
penalties  of  this  act  shall  not  apply  to 
any  person  who  is  b^iilding,  -fitting  out, 
or  arming,  or  procuring  to  be  built, 
fitted  oiit,  or  armed,  any  ship  or  vessel, 
as  aforesaid,  under  a  contract  entered 


DRAFT    OF    AN     AMENDED     NEUTRALITY     ACT  163 

into  before  the  commencement  of  the 
hostilities  in  which  the  said  foreign 
prince,  state,  colony,  district,  people,  or 
body  of  insurgents  for  whom  the  ves- 
sel is  intended,  is  engaged,  if  such  per- 
son gives  notice  to  the  District  Court 
of  the  district  in  zvhich  the  said  acts  are 
being  done,  of  the  fact  that  he  is  so 
building,  fitting  out,  or  arming,  or  pro- 
curing to  be  built,  fitted  out,  or  armed, 
such  ship  or  vessel,  and  if  he  gives 
such  security  and  takes  and  submits  to 
such  other  measures  as  may  be  pre- 
scribed by  the  President  for  assuring 
that  the  vessel  shall  not  be  delivered 
to  the  belligerent  party  for  zvhom  it  is 
intended  until  the  termination  of  the 
war. 


Note. — Sec.  4  of  the  Act  of  1818  has  Sec.  4.  And  be  it  further  enacted, 
no  longer  any  application.  See  Chapter  That  if  any  person  shall,  zvithin  tfie 
III,  p.  78.  territory  or  jurisdiction  of  the  United 

States,  sell,  transfer,  or  deliver,  any 
war-ship  or  other  vessel  built  pri- 
marily for  use  in  zvar,  or  any  z'cssel, 
which,  being  originally  commercial,  has, 
by  the  addition  of  armament,  been 
adapted  zvithin  or  zvithout  the  territory 
or  jurisdiction  of  the  United  States  for 
use  in  zvar,  to  any  foreign  prince,  state, 
colony,  district,  people,  or  body  of  in- 
surgents, zvith  intent  or  knozvledge  or 
having  reasonable  cause  to  believe  that 
such  ship  or  vessel  shall  or  zvill  be  em- 
ployed to  cruise  or  engage  in  hostile 
operations  against  any  foreign  prince 
or  state  zvith  zvhom  the  United  States 
are  at  peace,  or  against  any  foreign 
colony,  district,  or  people  zvhose  bel- 
ligerency has  been  recognized  by  the 
United  States  and  zvith  zvhom  the 
United  States  are  at  peace,  every  per- 
son so  offending  shall  be  guilty  of  a 
high  misdemeanor,  and  shall  be  fined 
not  more  th-an  ten  thousand  dollars,  and 
imprisoned  not  more  than  three  years; 
and  every  such  ship  or  vessel,  zvith  her 
tackle,  apparel,  and  furniture,  shall  be 


164  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

forfeited;  one  half  to  the  use  of  the 
informer,  and  the  other  half  to  the  use 
of  the  United  States. 

Sec.  5.  And  he  it  further  enacted,  Sec.  5.  And  he  it  further  enacted, 
That  if  any  persons  shall,  within  the  That  if  any  person  shall,  within  the 
territory  or  jurisdiction  of  the  United  territory  or  jurisdiction  of  the  United 
States,  increase  or  augment,  or  procure  States,  by  adding  to  the  number  of 
to  be  increased  or  augmented,  or  shall  guns,  or  by  changing  those  on  board 
knowingly  be  concerned  in  increasing  or  for  other  guns,  or  by  the  addition  of 
augmenting,  the  force  of  any  ship  of  any  equipment  solely  applicable  to  war, 
war  cruiser  or  other  armed  vessel,  increase  or  augment,  or  procure  to  be 
which,  at  the  time  of  her  arrival  with-  increased  or  augmented,  or  knowingly 
in  the  United  States,  was  a  ship  of  war,  be  concerned  in  increasing  or  aug- 
or  cruiser,  or  armed  vessel,  in  the  serv-  menting,  the  force  of  any  ship  of  war, 
ice  of  any  foreign  prince  or  state,  or  cruiser,  or  other  armed  vessel  which,  at 
of  any  colony,  district,  or  people,  or  the  time  of  her  arrival  within  the  Uni- 
belonging  to  the  subjects  or  citizens  of  ted  States,  was  a  ship  of  war,  or  cruiser, 
any  such  prince  or  state,  colony,  dis-  or  armed  vessel,  in  the  service  of  any 
trict,  or  people,  the  same  being  at  war  foreign  prince  or  state,  or  of  any  colony, 
with  any  foreign  prince  or  state,  or  of  district,  people,  or  body  of  insurgents, 
any  colony,  district,  or  people,  with  the  same  being  at  war  with  any  foreign 
whom  the  United  States  are  at  peace,  prince  or  state  with  whom  the  United 
by  adding  to  the  number  of  the  guns  States  are  at  peace,  or  with  any  for- 
of  such  vessel,  or  by  changing  those  on  eign  colony,  district,  or  people,  zvhose 
board  of  her  for  guns  of  a  larger  cali-  belligerency  has  been  recognized  by  the 
bre,  or  by  the  addition  thereto  of  any  United  States  and  with  whom  they  are 
equipment  solely  applicable  to  war,  at  peace,  or  if  any  person  shall,  ivithin 
every  person,  so  offending,  shall  the  territory  or  jurisdiction  of  the 
be  deemed  guilty  of  a  high  misde-  United  States,  and  zvithout  the  licence 
meanor,  shall  be  fined  not  more  than  of  the  President  of  the  United  States, 
one  thousand  dollars  and  be  imprisoned  furnish  to  any  ship  of  zmr,  cruiser,  or 
not  more  than  one  year.  any  other  armed  vessel,  as  aforesaid, 

supplies  of  food  or  coal,  or  make  or 
procure  to  be  made  repairs  upon  such 
ship  of  zvar,  cruiser,  or  other  armed 
vessel,  every  person  so  offending  shall 
be  deemed  guilty  of  a  high  misde- 
meanor, shall  be  fined  not  more  than 
one  thousand  dollars  and  be  imprisoned 
not  more  than  one  year. 

Sec.   6.  And   be  it  further  enacted,  Sec.   6.  And   be   it  further  enacted, 

That   if   any   person   shall,   within   the  That   if   any   person   shall,   within   the 

territory  or  jurisdiction  of  the  United  territory  or  jurisdiction  of  the  United 

States,  begin  or  set  on  foot,  or  provide  States,  begin  or  set  on  foot,  or  provide 

or  prepare  the  means  for,  any  military  or  prepare  the  means  for,  or  take  part 


DRAFT    OF    AN     AMENDED     NEUTRALITY     ACT 


165 


expedition  or  enterprise,  to  be  carried 
on  from  thence  against  the  territory  or 
dominions  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  peo- 
ple, with  whom  the  United  States  are 
[at]  peace,  every  person,  so  offending, 
shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  ex- 
ceeding three  thousand  dollars,  and  im- 
prisoned not  more  than  three  years. 


in,  any  naval  or  military  expedition  or 
enterprise,  to  be  carried  on  from  thence 
against  the  territory  or  dominions  of 
any  foreign  prince  or  state  with  whom 
the  United  States  are  at  peace,  or  of 
any  foreign  colony,  district,  or  people, 
whose  belligerency  has  been  recognised 
by  the  United  States  and  with  whom 
they  are  at  peace,  or  shall,  within  the 
territory  or  jurisdiction  of  the  United 
States,  organise  or  become  a  meynber 
of  a  corps  of  combatants  formed  in 
the  interest  of  a  foreign  prince,  state, 
colony,  district,  people,  or  body  of  in- 
surgents, at  war,  by  land  or  sea,  with 
any  foreign  prince  or  state  with  whom 
the  United  States  are  at  peace,  or  ivith 
any  foreign  colony,  district,  or  people, 
whose  belligerency  has  been  recognised 
by  the  United  States  and  with  whom 
they  are  at  peace,  every  person  so  of- 
fending shall  be  deemed  guilty  of  a 
high  misdemeanor,  and  shall  be  fined 
not  exceeding  three  thousand  dollars, 
and  imprisoned  not  more  than  three 
years. 


Sec.  7.  And  be  it  further  enacted, 
That  the  district  courts  shall  take  cog- 
nisance of  complaints,  by  whomsoever 
instituted,  in  cases  of  captures  made 
within  the  waters  of  the  United  States, 
or  within  a  marine  league  of  the  coasts 
or  shores  thereof. 


Sec.  7.  And  be  it  further  enacted. 
That  the  district  courts  shall  take  cog- 
nizance of  complaints,  by  whomsoever 
instituted,  in  cases  of  captures  made 
within  the  waters  of  the  United  States, 
or  within  a  marine  league  of  the  coasts 
or  shores  thereof,  and  in  cases  of  cap- 
tures by  vessels  zvhicli  have  been  built, 
fitted  out,  armed,  despatched,  sold, 
transferred  or  delivered  in  violation 
of  the  provisions  of  this  act. 


Sec.  8.  And  be  it  further  enacted, 
That  in  every  case  in  which  a  vessel 
shall  be  fitted  out  and  armed,  or  at- 
tempted to  be  fitted  out  and  armed,  or 
in  which  the  force  of  any  vessel  of 
war,  cruiser,  or  other  armed  vessel, 
shall  be  increased  or  augmented,  or  in 
which  any  military  expedition  or  enter- 
prise  shall  be  begun   or  set  on  foot, 


Sec.  8.  And  be  it  further  enacted, 
That  in  every  case  in  which  a  vessel 
shall  be  built,  fitted  out,  or  armed,  or 
attempted  to  be  built,  fitted  out,  or 
armed,  or  is  about  to  be  despatched, 
sold,  or  transferred,  or  in  which  the 
force  of  any  vessel  of  war,  cruiser,  or 
other  armed  vessel,  shall  be  increased 
or  augmented,  or  in  which  supplies  are 


166 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


contrary  to  the  provisions  and  prohibi- 
tions of  this  act;  and  in  every  case  of 
the  capture  of  a  ship  or  vessel  v^athin 
the  jurisdiction  or  protection  of  the 
United  States  as  before  defined,  and  in 
every  case  in  which  any  process  issu- 
ing out  of  any  court  of  the  United 
States  shall  be  disobeyed  or  resisted  by 
any  person  or  persons  having  the  cus- 
tody of  any  vessel  of  war,  cruiser,  or 
other  armed  vessel  of  any  foreign 
prince  or  state,  or  of  any  colony,  dis- 
trict, or  people,  or  of  any  subjects  or 
citizens  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  in 
every  such  case  it  shall  be  lawful  for 
the  President  of  the  United  States,  or 
such  other  person  as  he  shall  have  em- 
powered for  that  purpose,  to  employ 
such  part  of  the  land  or  naval  forces  of 
the  United  States,  or  of  the  militia 
thereof,  for  the  purpose  of  taking  pos- 
session of  and  detaining  any  such  ship 
or  vessel,  with  her  prize  or  prizes,  if 
any,  in  order  to  the  execution  of  the 
prohibitions  and  penalties  of  this  act, 
and  to  the  restoring  the  prize  or  prizes 
in  the  cases  in  which  restoration  shall 
have  been  adjudged,  and  also  for  the 
purpose  of  preventing  the  carrying  on 
of  any  such  expedition  or  enterprise 
from  the  territories  or  jurisdiction  of 
the  United  States  against  the  territories 
or  dominions  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  peo- 
ple, with  whom  the  United  States  are 
at  peace. 


furnished  to  any  vessel  of  war,  cruiser, 
or  other  armed  vessel,  or  in  which  any 
naval  or  military  expedition  or  enter- 
prise shall  be  begun  or  set  on  foot,  or 
a  corps  of  combatants  formed,  con- 
trary to  the  provisions  and  prohibitions 
of  this  act ;  and  in  every  case  of  the  cap- 
ture of  a  ship  or  vessel  within  the  ju- 
risdiction or  protection  of  the  United 
States,  as  before  defined,  in  every  such 
case,  when  a  warrant  shall  have  been 
issued  by  a  district  court  for  the  arrest 
of  persons  accused  of  violating  the 
provisions  of  this  act,  or  for  the 
seizure  of  a  vessel  alleged  to  be  for- 
feited under  the  provisions  of  this  act, 
and  when  such  warrant  shall  have  been 
disobeyed  or  resisted,  it  shall  be  lawful 
for  the  President  of  the  United  States, 
or  such  other  person  as  he  shall  have 
empowered  for  that  purpose,  to  employ 
such  part  of  the  land  or  naval  forces  of 
the  United  States,  or  of  the  militia 
thereof,  for  the  purpose  of  taking  pos- 
session of  and  detaining  any  such  ship 
or  vessel,  with  her  prize  or  prizes,  if 
any,  in  order  to  the  execution  of  the 
prohibitions  and  penalties  of  this  act, 
and  to  the  restoring  the  prize  or  prizes 
in  the  cases  in  which  restoration  shall 
have  been  adjudged,  and  also  for  the 
purpose  of  preventing  the  carrying  on 
of  any  such  expedition  or  enterprise 
from  the  territories  or  jurisdiction  of 
the  United  States  against  the  territories 
or  dominions  of  any  foreign  prince  or 
state  with  whom  the  United  States  are 
at  peace,  or  of  any  foreign  colony,  dis- 
trict, or  people,  whose  belligerency  hc^ 
been  recognised  by  the  United  States 
and  with  whom  the  United  States  are 
at  peace. 


Sec.  9.  And  be  it  further  enacted, 
That  it  shall  be  lawful  for  the  President 
of  the  United  States,  or  such  person  as 
he  shall  empower  for  that  purpose,  to 
employ  such  part  of  the  land  or  naval 


Sec.  9.  And  be  it  further  enacted. 
That  it  shall  be  lawful  for  the  President 
of  the  United  States,  or  such  person  as 
he  shall  empower  for  that  purpose,  to 
employ  such  part  of  the  land  or  naval 


DRAFT    OF    AN    AMENDED    NEUTRALITY    ACT 


167 


forces  of  the  United  States,  or  of  the 
mihtia  thereof,  as  shall  be  necessary  to 
compel  any  foreign  ship  or  vessel  to  de- 
part the  United  States  in  all  cases  in 
which,  by  the  laws  of  nations  or  the 
treaties  of  the  United  States,  they  ought 
not  to  remain  within  the  United  States. 


forces  of  the  United  States,  or  of  the 
militia  thereof,  as  shall  be  necessary  to 
compel  any  ship  or  vessel  in  the  serv- 
ice of,  or  belonging  to,  a  foreign  state 
to  depart  the  United  States,  or  as  shall 
be  necessary  to  detain  within  the  United 
States  any  ship  or  vessel  in  the  service 
of,  or  belonging  to,  a  foreign  state,  in 
all  cases  in  which,  by  the  laws  of  na- 
tions or  the  treaties  and  conventions  of 
the  United  States,  such  ship  or  vessel 
ought  not  to  remain  within,  or  to  depart 
from,  the  United  States,  or  as  shall  be 
necessary  to  effect  the  release  of  any 
ship  or  vessel  which  having  been  cap- 
tured by  a  belligerent  power  zuithin  the 
territorial  zvaters  of  the  United  States 
is  found  zvithin  the  jurisdiction  of  tJie 
United  States. 


Sec.  10.  And  be  it  further  enacted,  Sec.  10.  And  be  it  further  enacted. 
That  the  owners  or  consignees  of  every  That  the  owners  or  consignees  of  every 
armed  ship  or  vessel  sailing  out  of  the  war-ship,  or  vessel  built  primarily  for 
ports  of  the  United  States,  belonging  use  in  war,  or  other  vessel  which,  being 
wholly  or  in  part  to  citizens  thereof,  originally  commercial,  has,  by  the  addi- 
shall  enter  into  bond  to  the  United  tion  of  armament,  been  adapted  within 
States,  with  sufficient  sureties,  prior  to  or  zmthout  the  territory  or  jurisdiction 
clearing  out  the  same,  in  double  the  of  the  United  States  for  use  in  war, 
amount  of  the  value  of  the  vessel  and  shall,  before  such  ship  or  vessel  clears 
cargo  on  board,  including  her  arma-  out  the  ports  of  the  United  States,  en- 
ment,  that  the  said  ship  or  vessel  shall  ter  into  bond  to  the  United  States,  with 
not  be  employed  by  such  owners  to  sufficient  sureties,  in  double  the  amount 
cruise  or  commit  hostilities  against  the  of  the  value  of  the  vessel  and  cargo  on 
subjects,  citizens,  or  property,  of  any  board,  including  her  armament,  that  the 
foreign  prince  or  state,  or  of  any  col-  said  ship  or  vessel  shall  not  be  em- 
ony,  district,  or  people,  with  whom  the  ployed  by  such  owners  to  cruise  or 
United  States  are  at  peace.  comm.it    hostilities     against    the    sub- 

jects, citizens,  or  property  of  any 
foreign  prince  or  state  with  whom 
the  United  States  are  at  peace,  or  of 
any  foreign  colony,  district,  or  people, 
whose  belligerency  has  been  recognised 
by  the  United  States  and  with  whom 
they  are  at  peace,  and  that  such  oivners 
or  consignees  shall  enter  into  bond  to 
the  United  States,  as  aforesaid,  and 
shall  give  proof  to  the  satisfaction  of 
the  district    court    of    the    district    in 


168 


NEUTRALITY  LAWS  OF  THE  UNITED  STATES 


Sec.  11.  And  be  it  further  enacted, 
That  the  collectors  of  the  customs  be, 
and  they  are  hereby,  respectively,  au- 
thorized and  required  to  detain  any 
vessel  manifestly  built  for  w^arlike  pur- 
poses, and  about  to  depart  the  United 
States,  of  which  the  cargo  shall  prin- 
cipally consist  of  arms  and  munitions 
of  war,  when  the  number  of  men 
shipped  on  board,  or  other  circum- 
stances, shall  render  it  probable  that 
such  vessel  is  intended  to  be  employed 
by  [he  owner  or  owners  to  cruise  or 
commit  hostilities  upon  the  subjects, 
citizens,  or  property,  of  any  foreign 
prince  or  state,  or  of  any  colony,  dis- 
trict, or  people,  with  whom  the  United 
States  are  at  peace,  until  the  decision 
of  the  President  be  had  thereon,  or 
until  the  owner  or  owners  shall  give 
such  bond  and  security  as  is  required 
of  the  owners  of  armed  ships  by  the 
preceding  section  of  this  act. 

Sec.  12.  And  be  it  further  enacted, 
That  the  act  passed  on  the  fifth  day  of 
June,  one  thousand  seven  hundred  and 
ninety-four,  entitled,  "An  act  in  addi- 
tion to  the  act  for  the  punishment  of 


which  the  said  vessel  lies,  that  the  said 
vessel  is  not  leaving  port  under  a  con- 
tract or  agreement  entered  into  by  the 
said  owners  or  cotisignees  for  the  sale 
or  delivery  of  the  vessel,  whether  with- 
in the  territorial  waters  of  the  United 
States,  or  on  the  high  seas,  or  in  a 
foreign  port,  to  any  foreign  prince, 
state,  colony,  district,  people,  or  body 
of  insurgents,  at  war,  by  land  or  sea, 
with  any  foreign  prince  or  state  with 
whom  the  United  States  are  at  peace, 
or  with  any  foreign  colony,  district,  or 
people,  whose  belligerency  has  been 
recognized  by  the  United  States,  and 
with  whom  they  are  at  peace,  or  to  the 
subjects  or  citizens  of  any  foreign 
prince  or  state  whatsoever. 

Sec.  11.  And  be  it  further  enacted. 
That  the  several  collectors  of  custom.s 
shall  detain  any  war-ship,  or  other  ves- 
sel built  primarily  for  tise  in  war,  or 
other  vessel  which,  being  originally 
commercial,  has,  by  the  addition  of 
armament,  been  adapted  within  or  with- 
out the  territory  or  jurisdiction  of  the 
United  States  for  use  in  war,  and  is 
about  to  depart  from  the  United  States, 
until  the  owner  gives  such  bond  and  se- 
curity, and  furnishes  such  proof  as  is 
required  of  the  owners  of  armed  ves- 
sels by  the  preceding  section. 


Sec.  12.  And  be  it  further  enacted, 
That  the  act  passed  on  the  twentieth 
day  of  April,  one  thousand  eight  hun- 
dred and  eighteen,  entitled,  "An  act 
in  addition  to  the  act  for  the  punish- 


DRAFT  OF  AN  AMENDED  NEUTRALITY  ACT 


169 


certain  crimes  against  the  United 
States,"  continued  in  force,  for  a  lim- 
ited time,  by  the  act  of  the  second  of 
March,  one  thousand  seven  hundred 
and  ninety-seven,  and  perpetuated  by 
the  act  passed  on  the  twenty-fourth  of 
April,  one  thousand  eight  hundred,  and 
the  act,  passed  on  the  fourteenth  day 
of  June,  one  thousand  seven  hundred 
and  ninety-seven,  entitled  "An  act  to 
prevent  citizens  of  the  United  States 
from  privateering  against  nations  in 
amity  with,  or  against  the  citizens  of, 
the  United  States,"  and  the  act,  passed 
the  third  day  of  March,  one  thousand 
eight  hundred  and  seventeen,  entitled, 
"An  act  more  effectually  to  preserve 
the  neutral  relations  of  the  United 
States,"  be,  and  the  same  are  hereby, 
severally,  repealed:  Provided,  never- 
theless, That  persons  having  heretofore 
offended  against  any  of  the  acts  afore- 
said, may  be  prosecuted,  convicted,  and 
punished  as  if  the  same  were  not  re- 
pealed, and  no  forfeiture  heretofore 
incurred  by  a  violation  of  any  of  the 
acts  aforesaid  shall  be  affected  by  such 
repeal. 

Sec.  13.  And  he  it  further  enacted. 
That  nothing  in  the  foregoing  act  shall 
be  construed  to  prevent  the  prosecu- 
tion or  punishment  of  treason,  or  any 
piracy  defined  by  the  laws  of  the  United 
States. 

Note. — Supplemental  section  embod- 
ied in  joint  resolution  of  March  14, 
1912.     See  appendix,  p.  183. 


ment  of  certain  crimes  against  the 
United  States  and  to  repeal  the  acts 
therein  mentioned,"  be,  and  the  same 
is  hereby,  repealed:  Provided,  That  the 
repeal  of  the  said  act  shall  not  have  the 
effect  of  reviving  any  of  the  former 
acts  thereby  repealed,  and  that  persons 
having,  heretofore,  offended  against  the 
said  act  may  be  prosecuted,  convicted 
and  punished  as  if  the  same  were  not 
repealed,  and  no  forfeiture  heretofore 
incurred  by  a  violation  of  any  of  the 
acts  aforesaid  shall  be  affected  by  such 
repeal. 


Sec.  13  stands  unchanged. 


Sec.  14.  And  he  it  further  enacted. 
That  whenever  the  President  shall 
find  that  in  any  American  country  con- 
ditions of  domestic  violence  exist  which 
are  promoted  by  the  use  of  arms  or 
munitions  of  war  procured  from  the 
United  States,  and  shall  make  procla- 
mation thereof,  it  shall  be  unlawful  to 
export  except  under  such  limitations 
and  exceptions  as  the  President  shall 
prescribe  any  arms  or  munitions  of  war 
from  any  place  in  the  United  States  to 
such  country  until  otherwise  ordered  by 
the  President  or  by  Congress. 


APPENDIX 


Instructions  to  the  Collectors  of  th-e  Customs  of  the  United  States} 

Philadelphia,  August  4,  1793. 
Sir: 

It  appearing  that  repeated  contraventions  of  our  neutrality  have  taken  place 
in  the  ports  of  the  United  States,  without  having  been  discovered  in  time  for 
prevention  or  remedy,  I  have  it  in  command  from  the  President  to  address  to 
the  collectors  of  the  respective  districts  a  particular  instruction  on  the  subject. 

It  is  expected  that  the  officers  of  the  customs  in  each  district  will,  in  the 
course  of  their  official  functions,  have  a  vigilant  eye  upon  whatever  may  be 
passing  within  the  ports,  harbors,  creeks,  inlets,  and  waters,  of  such  district,  of 
a  nature  to  contravene  the  laws  of  neutrality,  and  upon  discovery  of  any  thing 
of  the  kind,  will  give  immediate  notice  to  the  Governor  of  the  State,  and  to  the 
attorney  of  the  judicial  district  comprehending  the  district  of  the  customs  within 
which  any  such  contravention  may  happen. 

To  assist  the  judgment  of  the  officers  on  this  head,  I  transmit  herewith  a 
schedule  of  rules  concerning  sundry  particulars  which  have  been  adopted  by 
the  President,  as  deductions  from  the  laws  of  neutrality,  established  and  received 
among  nations.  Whatever  shall  be  contrary  to  these  rules  will,  of  course,  be 
to  be  notified  as  above  mentioned. 

There  are  some  other  points  which,  pursuant  to  our  treaties,  and  the  deter- 
mination of  the  Executive,  I  ought  to  notice  to  you. 

If  any  vessel  of  either  of  the  Powers  at  war  with  France,  should  bring  or 
Send  within  your  district  a  prize  made  of  the  subjects,  people,  or  property  of 
France,  it  is  immediately  to  be  notified  to  the  Governor  of  the  State,  in  order 
that  measures  may  be  taken,  pursuant  to  the  17th  article  of  our  treaty  with 
France,  to  oblige  such  vessel  and  her  prize,  or  such  prize,  when  sent  in  without 
the  capturing  vessel,  to  depart. 

No  privateer  of  any  of  the  Powers  at  war  with  France,  coming  within  a  dis- 
trict of  the  United  States,  can,  by  the  22d  article  of  our  treaty  with  France, 
enjoy  any  other  privilege  than  that  of  purchasing  such  victuals  as  shall  be  neces- 
sary for  her  going  to  the  next  port  of  the  Prince  or  State  from  which  she  has 
her  commission.  If  she  should  do  any  thing  beside  this,  it  is  immediately  to  be 
reported  to  the  Governor,  and  the  attorney  of  the  district.  You  will  observe,  by 
the  rules  transmitted,  that  the  term  privateer  is  understood  not  to  extend  to 
vessels  armed  for  merchandise  and  war,  commonly  called  with  us  letters  of 
marque,  nor,  of  course,  to  vessels  of  war  in  the  immediate  service  of  the  gov- 
ernment of  either  of  the  Powers  at  war. 

No  armed  vessel  which  has  been  or  shall  be  originally  fitted  out  in  any  port 

^Am.  State  Papers,  For.  Rcl,  I,  140. 


APPENDIX  171 

of  the  United  States,  by  either  of  the  parties  at  war,  is  henceforth  to  have 
asylum  in  any  district  of  the  United  States.  If  any  such  armed  vessel  shall 
appear  within  your  district,  she  is  immediately  to  be  notified  to  the  Governor 
and  attorney  of  the  district,  which  is  also  to  be  done  in  respect  to  any  prize 
that  such  armed  vessel  shall  bring  or  send  in.  At  foot  is  a  list  of  such  armed 
vessels  of  the  above  description  as  have  hitherto  come  to  the  knowledge  of  the 
Executive. 

The  purchasing  within,  and  exporting  from  the  United  States,  by  way  of 
merchandise,  articles  commonly  called  contraband,  being  generally  warlike  in- 
struments and  military  stores,  is  free  to  all  parties  at  war,  and  is  not  to  be  inter- 
fered with.  If  our  own  citizens  undertake  to  carry  them  to  any  of  those  parties, 
they  will  be  abandoned  to  the  penalties  which  the  laws  of  war  authorize. 

You  will  be  particularly  careful  to  observe,  and  to  notify  as  directed  in  other 
instances,  the  case  of  any  citizen  of  the  United  States  who  shall  be  found  in 
the  service  of  either  of  the  parties  at  war. 

In  case  any  vessel  shall  be  found  in  the  act  of  contravening  any  of  the  rules 
or  principles  which  are  the  ground  of  this  instruction,  she  is  to  be  refused  a 
clearance  until  she  shall  have  complied  with  what  the  Governor  shall  have 
decided  in  reference  to  her.  Care,  however,  is  to  be  taken  in  this,  not  unneces- 
sarily or  unreasonably  to  embarrass  trade,  or  to  vex  any  of  the  parties  con- 
cerned. 

In  order  that  contraventions  may  be  the  better  ascertained,  it  is  desired  that 
the  officer  who  shall  first  go  on  board  any  vessel  arriving  within  your  district, 
shall  make  an  accurate  survey  of  her  then  condition  as  to  military  equipment, 
to  be  forthwith  reported  to  you ;  and  that,  prior  to  her  clearance,  a  like  survey 
be  made,  that  any  transgression  of  the  rules  laid  down  may  be  ascertained. 

But,  as  the  propriety  of  any  such  inspection  of  a  vessel  of  war  in  the  imme- 
diate service  of  the  government  of  a  foreign  nation  is  not  without  question  in 
reference  to  the  usage  of  nations,  no  attempt  is  to  be  made  to  inspect  any  such 
vessel,  till  further  order  on  the  point. 

The  President  desires  me  to  signify  to  you  his  most  particular  expectation, 
that  the  instruction  contained  in  this  letter  will  be  executed  with  the  greatest 
vigilance,  care,  activity,  and  impartiality.  Omissions  will  tend  to  expose  the 
Government  to  injurious  imputations  and  suspicions,  and  proportionably  to 
commit  the  good  faith  and  peace  of  the  country — objects  of  too  much  importance 
not  to  engage  every  proper  exertion  of  your  zeal. 

With  consideration,  I  am,  sir,  &c. 

Alexander  Hamilton. 

1.  The  original  arming  and  equipping  of  vessels  in  the  ports  of  the  United 
States,  by  any  of  the  belligerent  parties,  for  military  service,  offensive  or  defen- 
sive, is  deemed  unlawful. 

2.  Equipments  of  merchant  vessels,  by  either  of  the  belligerent  parties,  in  the 
ports  of  the  United  States,  purely  for  the  accommodation  of  them  as  such,  is 
deemed  lawful. 

3.  Equipments  in  the  ports  of  the  United  States,  of  vessels  of  war  in  the 
immediate  service  of  the  government  of  any  of  the  belligerent  parties,  which,  if 
done  to  other  vessels,  would  be  of  a  doubtful  nature,  as  being  applicable  either 
to  commerce  or  war,  are  deemed  lawful ;  except  those  which  shall  have  made 


172  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

prize  of  the  subjects,  people,  or  property  of  France,  coming  with  their  prizes 
into  the  ports  of  the  United  States,  pursuant  to  the  17th  article  of  our  treaty  of 
amity  and  commerce  with  France. 

4.  Equipments  in  the  ports  of  the  United  States,  by  any  of  the  parties  at  war 
with  France,  of  vessels  fitted  for  merchandise  and  war,  whether  with  or  with- 
out commissions,  which  are  doubtful  in  their  nature  as  being  applicable  either 
to  commerce  or  war,  are  deemed  lawful;  except  those  which  shall  have  made 
prize,  &c. 

5.  Equipments  of  any  of  the  vessels  of  France,  in  the  ports  of  the  United 
States,  which  are  doubtful  in  their  nature  as  being  applicable  to  commerce  or 
war,  are  deemed  lawful. 

6.  Equipments  of  every  kind,  in  the  ports  of  the  United  States,  of  privateers 
of  the  Powers  at  war  with  France,  are  deemed  unlawful. 

7.  Equipments  of  vessels  in  the  ports  of  the  United  States,  which  are  of  a 
nature  solely  adapted  to  war,  are  deemed  unlawful ;  except  those  stranded  or 
wrecked,  as  mentioned  in  the  18th  article  of  our  treaty  with  France,  the  16th 
of  our  treaty  with  the  United  Netherlands,  the  9th  of  our  treaty  with  Prussia; 
and  except  those  mentioned  in  the  19th  article  of  our  treaty  with  France,  the 
17th  of  our  treaty  with  the  United  Netherlands,  the  18th  of  our  treaty  with 
Prussia. 

8.  Vessels  of  either  of  the  parties,  not  armed,  or  armed  previous  to  their 
coming  into  the  ports  of  the  United  States,  which  shall  not  have  infringed  any 
of  the  foregoing  rules,  may  lawfully  engage  or  enlist  therein  their  own  sub- 
jects or  citizens,  not  being  inhabitants  of  the  United  States ;  except  privateers  of 
the  Powers  at  war  with  France,  and  except  those  vessels  which  shall  have  made 
prize,  &c. 

Proclamation  of  Neutrality.^ 

By  THE  President  of  the  United  States  of  America. 

A  PROCLAMATION. 

Whereas  I  have  received  information  that  certain  persons,  in  violation  of 
the  laws,  have  presumed,  under  colour  of  a  foreign  authority,  to  enlist  citizens 
of  the  United  States,  and  others,  within  the  State  of  Kentucky,  and  have  there 
assembled  an  armed  force  for  the  purpose  of  invading  and  plundering  the  ter- 
ritories of  a  nation  at  peace  with  the  said  United  States :  And  whereas  such  un- 
warrantable measures,  being  contrary  to  the  laws  of  nations,  and  to  the  duties 
incumbent  on  «very  citizen  of  the  United  States,  tend  to  disturb  the  tranquillity 
of  the  same,  and  to  involve  them  in  the  calamities  of  war :  and  whereas  it  is  the 
duty  of  the  executive  to  take  care  that  such  criminal  proceedings  should  be  sup- 
pressed, the  offenders  brought  to  justice,  and  all  good  citizens  cautioned  against 
measures  likely  to  prove  so  pernicious  to  their  country  and  themselves,  should 
they  be  seduced  into  similar  infractions  of  the  laws,  I  have  therefore  thought 
proper  to  issue  this  prpclamation,  hereby  solemnly  warning  every  person,  not 
authorized  by  the  laws,  against  enlisting  any  citizen  or  citizens  of  the  United 
States,  or  levying  troops,  or  assembling  any  persons  within  the  United  States 

iRichardson's  Messages,  I,  157. 


APPENDIX  173 

for  the  purposes  aforesaid,  or  proceeding  in  any  manner  to  the  execution  thereof, 
as  they  will  answer  the  same  at  their  peril;  And  I  do  also  admonish  and  re- 
quire all  citizens  to  refrain  from  enlisting,  enrolling,  or  assembling  themselves 
for  such  unlawful  purposes,  and  from  being  in  anywise  concerned,  aiding,  or 
abetting  therein,  as  they  tender  their  own  welfare,  inasmuch  as  all  lawful 
means  will  be  strictly  put  in  execution  for  securing  obedience  to  the  laws,  and 
for  punishing  such  dangerous  and  daring  violations  thereof. 

And  I  do  moreover,  charge  and  require  all  courts,  magistrates,  and  other 
officers  whom  it  may  concern,  according  to  their  respective  duties,  to  exert  the 
powers  in  them  severally  vested,  to  prevent  and  suppress  all  such  unlawful  as- 
semblages and  proceedings,  and  to  bring  to  condign  punishment  those  who  may 
have  been  guilty  thereof,  as  they  regard  the  due  authority  of  government,  and 
the  peace  and  welfare  of  the  United  States. 

In  Testimony  Whereof,  I  have  caused  the  seal  of  the  United  States  of 
America  to  be  affixcLd  to  these  presents,  and  signed  the  same  with  my  hand. 
Done  at  the  city  of  Philadelphia,  the  twenty-fourth  day  of  March,  one  thousand 
seven  hundred  and  ninety-four,  and  of  the  independence  of  the  United  States 
of  America  the  eighteenth. 

(L.  S.)  G.  Washington, 

By  the  President: 
Edm.  Randolph, 

Secretary  of  State. 


An  Act  in  addition  to  the  act  for  the  punishment  of  certain  crimes 

against  the  United  States} 

Section  1.  Be  it  enacted  and  declared  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That  if  any  citi- 
zen of  the  United  States  shall,  within  the  territory  or  jurisdiction  of  the  same, 
accept  and  exercise  a  commission  to  serve  a  foreign  prince  or  state  in  war  by 
land  or  sea,  the  person  so  offending  shall  be  deemed  guilty  of  a  high  misde- 
meanor, and  shall  be  fined  not  more  than  two  thousand  dollars,  and  shall  be  im- 
prisoned not  exceeding  three  years. 

Sec.  2.  And  be  it  further  enacted  and  declared,  That  if  any  person  shall  with- 
in the  territory  or  jurisdiction  of  the  United  States  enlist  or  enter  himself,  or 
hire  or  retain  another  person  to  enlist  or  enter  himself,  or  to  go  beyond  the  lim- 
its or  jurisdiction  of  the  United  States  with  intent  to  be  enlisted  or  entered  in 
the  service  of  any  foreign  prince  or  state  as  a  soldier,  or  as  a  marine  or  seaman 
on  board  of  any  vessel  of  war,  letter  of  marque  or  privateer,  every  person  so 
offending  shall  be  deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined  not 
exceeding  one  thousand  dollars,  and  be  imprisoned  not  exceeding  three  years. 
\rovided,  That  this  shall  not  be  construed  to  extend  to  any  subject  or  citizen  of 
a  Xpreign  prince  or  state  who  shall  transiently  be  within  the  United  States  and 
shaM  on  board  of  any  vessel  of  war,  letter  of  marque  or  privateer,  which  at  the 
time  of  its  arrival  within  the  United  States  was  fitted  and  equipped  as  such,  en- 

n  Stat.  L.,  381. 


174  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

list  or  enter  himself  or  hire  or  retain  another  subject  or  citizen  of  the  same 
foreign  prince  or  state,  who  is  transiently  within  the  United  States,  to  enlist 
or  enter  himself  to  serve  such  prince  or  state  on  board  such  vessel  of  war,  letter 
of  marque  or  privateer,  if  the  United  States  shall  then  be  at  peace  with  such 
prince  or  state.  And  provided  further.  That  if  any  person  so  enlisted  shall  with- 
in thirty  days  after  such  enlistment  voluntarily  discover  upon  oath  to  some  jus- 
tice of  the  peace  or  other  civil  magistrate,  the  person  or  persons  by  whom  he 
was  so  enlisted,  so  as  that  he  or  they  may  be  apprehended  and  convicted  of  the 
said  offence;  such  person  so  discovering  the  offender  or  offenders  shall  be  in- 
demnified from  the  penalty  prescribed  by  this  act. 

Sec.  3.  And  be  it  further  enacted  and  declared,  That  if  any  person  shall  with- 
in any  of  the  ports,  harbors,  bays,  rivers  or  other  waters  of  the  United  States, 
fit  out  and  arm  or  attempt  to  fit  out  and  arm  or  procure  to  be  fitted  out  and 
armed,  or  shall  knowingly  be  concerned  in  the  furnishing,  fitting  out  or  arming 
of  any  ship  or  vessel  with  intent  that  such  ship  or  vessel  shall  be  employed  in 
the  service  of  any  foreign  prince  or  state  to  cruise  or  commit  hostilities  upon 
the  subjects,  citizens  or  property  of  another  foreign  prince  or  state  with  whom 
the  United  States  are  at  peace,  or  shall  issue  or  deliver  a  commission  within  the 
territory  or  jurisdiction  of  the  United  States  for  any  ship  or  vessel  to  the  intent 
that  she  may  be  employed  as  aforesaid,  every  such  person  so  offending  shall 
upon  conviction  be  adjudged  guilty  of  a  high  misdemeanor,  and  shall  be  fined 
and  imprisoned  at  the  discretion  of  the  court  in  which  the  conviction  shall  be 
had,  so  as  the  fine  to  be  imposed  shall  in  no  case  be  more  than  five  thousand 
dollars  and  the  term  of  imprisonment  shall  not  exceed  three  years,  and  every 
such  ship  or  vessel  with  her  tackle,  apparel  and  furniture  together  with  all  ma- 
terials, arms,  ammunition  and  stores  which  may  have  been  procured  for  the 
building  and  equipment  thereof  shall  be  forfeited,  one-half  to  the  use  of  any 
person  who  shall  give  information  of  the  offence,  and  the  other  half  to  the  use 
of  the  United  States. 

Sec.  4.  And  be  it  further  enacted  and  declared,  That  if  any  person  shall  with- 
in the  territory  or  jurisdiction  of  the  United  States  increase  or  augment,  or  pro- 
cure to  be  increased  or  augmented,  or  shall  be  knowingly  concerned  in  increasing 
or  augmenting  the  force  of  any  ship  of  war,  cruiser  or  other  armed  vessel  which 
at  the  time  of  her  arrival  within  the  United  States,  was  a  ship  of  war,  cruiser 
or  armed  vessel  in  the  service  of  a  foreign  prince  or  state  or  belonging  to  the 
subjects  or  citizens  of  such  prince  or  state  the  same  being  at  war  with  another 
foreign  prince  or  state  with  whom  the  United  States  are  at  peace,  by  adding  to 
the  number  or  size  of  the  guns  of  such  vessel  prepared  for  use,  or  by  the  addi- 
tion thereto  of  any  equipment  solely  applicable  to  war,  every  such  person  so  of- 
fending shall  upon  conviction  be  adjudged  guilty  of  a  misdemeanor,  and  shall 
be  fined  and  imprisoned  at  the  discretion  of  the  court  in  which  the  conviction 
shall  be  had,  so  as  that  such  fine  shall  not  exceed  one  thousand  dollars,  nor  the 
term  of  imprisonment  be  more  than  one  year. 

Sec.  5.  Afid  be  it  further  enacted  and  declared,  That  if  any  person  shall  with- 
in the  territory  or  jurisdiction  of  the  United  States  begin  or  set  on  foot  or  pro- 
vide or  prepare  the  means  for  any  military  expedition  or  enterprise  to  be  car- 
ried on  from  thence  against  the  territory  or  dominions  of  any  foreign  prince 
or  state  with  whom  the  United  States  are  at  peace,  every  such  person  so  offend- 


APPENDIX  175 

ing  shall  upon  conviction  be  adjudged  guilty  of  a  high  misdemeanor,  and  shall 
suffer  fine  and  imprisonment  at  the  discretion  of  the  court  in  which  the  con- 
viction shall  be  had,  so  as  that  such  fine  shall  not  exceed  three  thousand  dol- 
lars nor  the  term  of  imprisonment  be  more  than  three  years. 

Sec.  6.  And  be  it  further  enacted  and  declared,  That  the  district  courts  shall 
take  cognizance  of  complaints  by  whomsoever  instituted,  in  cases  of  captures 
made  within  the  waters  of  the  United  States,  or  within  a  marine  league  of  the 
coasts  or  shores  thereof. 

Sec.  7.  And  he  it  further  enacted  and  declared,  That  in  every  case  in  which 
a  vessel  shall  be  fitted  out  and  armed,  or  attempted  so  to  be  fitted  out  or  armed, 
or  in  which  the  force  of  any  vessel  of  war,  cruiser  or  other  armed  vessel,  shall 
be  increased  or  augmented,  or  in  which  any  military  expedition  or  enterprise 
shall  be  begun  or  set  on  foot  contrary  to  the  prohibitions  and  provisions  of  this 
act;  and  in  every  case  of  the  capture  of  a  ship  or  vessel  within  the  jurisdiction 
or  protection  of  the  United  States  as  above  defined,  and  in  every  case  in  which 
any  process  issuing  out  of  any  court  of  the  United  States,  shall  be  disobeyed 
or  resisted  by  any  person  or  persons  having  the  custody  of  any  vessel  of  war, 
cruiser  or  other  armed  vessel  of  any  foreign  prince  or  state,  or  of  the  subjects 
or  citizens  of  such  prince  or  state,  in  every  such  case  it  shall  be  lawful  for  the 
President  of  the  United  States,  or  such  other  person  as  he  shall  have  empowered 
for  that  purpose,  to  employ  such  part  of  the  land  or  naval  forces  of  the  United 
States  or  of  the  militia  thereof  as  shall  be  judged  necessary  for  the  purpose  of 
taking  possession  of,  and  detaining  any  such  ship  or  vessel,  with  her  prize  or 
prizes  if  any,  in  order  to  the  execution  of  the  prohibitions  and  penalties  of  this 
act,  and  to  the  restoring  such  prize  or  prizes,  in  the  cases  in  which  restoration 
shall  have  been  adjudged,  and  also  for  the  purpose  of  preventing  the  carrying 
on  of  any  such  expedition  or  enterprise  from  the  territories  of  the  United  States 
against  the  territories  or  dominions  of  a  foreign  prince  or  state,  with  whom  the 
United  States  are  at  peace. 

Sec.  8.  And  he  it  further  enacted  and  declared,  That  it  shall  be  lawful  for 
the  President  of  the  United  States,  or  such  other  person  as  he  shall  have  em- 
powered for  that  purpose,  to  employ  such  part  of  the  land  or  naval  forces  of  the 
United  States  or  of  the  militia  thereof,  as  shall  be  necessary  to  compel  any  for- 
eign ship  or  vessel  to  depart  the  United  States,  in  all  cases  in  which,  by  the  laws 
of  nations  or  the  treaties  of  the  United  States,  they  ought  not  to  remain  within 
the  United  States. 

Sec.  9.  And  he  it  further  enacted.  That  nothing  in  the  foregoing  act  shall  be 
construed  to  prevent  the  prosecution  or  punishment  of  treason,  or  any  piracy 
defined  by  a  treaty  or  other  law  of  the  United  States. 

Sec.  10.  And  he  it  further  enacted.  That  this  act  shall  continue  and  be  in 
force  for  and  during  the  term  of  two  years,  and  from  thence  to  the  end  of  the 
next  session   of  Congress,  and  no  longer. 

Approved,  June  5,  1794. 


176  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

An  Act  to  prevent  citizens  of  the  United  States  from  Privateering , 
against  nations  in  amity  with,  or  agadnst  citizens  of  the  United  States.^'"^ 

Sec.  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  if  any  citizen  or  citizens 
of  the  United  States  shall,  without  the  limits  of  the  same,  fit  out  and  arm,  or 
attempt  to  fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or  shall  know- 
ingly aid  or  be  concerned  in  the  furnishing,  fitting  out  or  arming  any  private  ship 
or  vessel  of  war,  with  intent  that  such  ship  or  vessel  shall  be  employed  to  cruise  or 
commit  hostilities,  upon  the  subjects,  citizens  or  property  of  any  prince  or  state 
with  whom  the  United  States  are  at  peace,  or  upon  the  citizens  of  the  United 
States,  or  their  property,  or  shall  take  the  command  of,  or  enter  on  board  of 
any  such  ship  or  vessel  for  the  intent  aforesaid,  or  shall  purchase  an  interest  in 
any  vessel  so  fitted  out  and  armed,  with  a  view  to  share  in  the  profits  thereof, 
such  person  or  persons  so  offending  shall,  on  conviction  thereof,  be  adjudged 
guilty  of  a  high  misdemeanor,  and  shall  be  punished  by  a  fine  not  exceeding  ten 
thousand  dollars,  and  imprisonment  not  exceeding  ten  years.  And  the  trial 
for  such  offence,  if  committed  without  the  limits  of  the  United  States,  shall  be 
in  the  district  where  the  offender  shall  be  apprehended  or  first  brought. 

Sec.  2.  And  be  it  further  enacted.  That  nothing  in  the  foregoing  act  shall  be 
construed  to  prevent  the  prosecution  or  punishment  of  treason,  or  any  piracy 
defined  by  a  treaty  or  other  law  of  the  United  States. 

Approved,  June  14,  1797. 


An  Act  in  addition  to  the  "Act  for  the  punishment  of  certain  crimes 
against  the  United  States,"  and  to  repeal  the  acts  therein  mentioned. (t) 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America,  in  Congress  assembled.  That  if  any  citizen  of  the  United 
States  shall,  within  the  territory  or  jurisdiction  thereof,  accept  and  exercise  a 
commission  to  serve  a  foreign  prince,  state,  colony,  district,  or  people  in  war,  by 
land  or  by  sea,  against  any  prince,  state,  colony,  district,  or  people,  with  whom 
the  United  States  are  at  peace,  the  person  so  offending  shall  be  deemed  guilty 
of  a  high  misdemeanor,  and  shall  be  fined  not  more  than  two  thousand  dollars, 
and  shall  be  imprisoned  not  exceeding  three  years. 

Sec.  2.  And  be  it  further  enacted.  That  if  any  person  shall,  within  the  terri- 
tory or  jurisdiction  of  the  United  States,  enlist  or  enter  himself,  or  hire  or  re- 
tain another  person  to  enlist  or  enter  himself,  or  to  go  beyond  the  limits  or  juris- 
diction of  the  United  States  with  intent  to  be  enlisted  or  entered  in  the  service 
of  any  forign  prince,  state,  colony,  district,  or  people,  as  a  soldier,  or  as  a  marine 
or  seaman,  on  board  of  any  vessel  of  war,  letter  of  marque,  or  privateer,  every 
person  so  offending  shall  be  deemed  guilty  of  a  high  misdemeanor,  and  shall 
be  fined  not  exceeding  one  thousand  dollars,  and  be  imprisoned  not  exceeding 


n  Stat.  L.,  520.  "^ 
23  Stat.  L.,  447. 


9 


u? 


APPENDIX  177 

three  years :  Provided,  That  this  act  shall  not  be  construed  to  extend  to  any- 
subject  or  citizen  of  any  foreign  prince,  state,  colony,  district  or  people,  who 
shall  transiently  be  within  the  United  States,  and  shall  on  board  of  any  vessel 
of  war,  letter  of  marque,  or  privateer,  which  at  the  time  of  its  arrival  within 
the  United  States,  was  fitted  and  equipped  as  such,  enlist  or  enter  himself,  or 
hire  or  retain  another  subject  or  citizen  of  the  same  foreign  prince,  state,  colony, 
district,  or  people,  who  is  transiently  within  the  United  States,  to  enlist  or  enter 
himself  to  serve  such  foreign  prince,  state,  colony,  district,  or  people,  on  board 
such  vessel  of  war,  letter  of  marque,  or  privateer,  if  the  United  States  shall  then 
be  at  peace  with  such  foreign  prince,  state,  colony,  district,  or  people. 

Sec.  3.  And  he  it  further  enacted,  That  if  any  person  shall,  within  the  limits 
of  the  United  States,  fit  out  and  arm,  or  attempt  to  fit  out  and  arm.  or  procure 
to  be  fitted  out  and  armed,  or  shall  knowingly  be  concerned  in  the  furnishing, 
fitting  out,  or  arming,  of  any  ship  or  vessel  with  intent  that  such  ship  or  vessel 
shall  be  employed  in  the  service  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people,  to  cruise  or  commit  hostilities  against  the  subjects,  citizens, 
or  property  of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people 
with  whom  the  United  States  are  at  peace,  or  shall  issue  or  deliver  a  commis- 
sion within  the  territory  or  jurisdiction  of  the  United  States,  for  any  ship  or 
vessel,  to  the  intent  that  she  may  be  employed  as  aforesaid,  every  person  so  offend- 
ing shall  be  deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  more 
than  ten  thousand  dollars,  and  imprisoned  not  more  than  three  years ;  and  every 
such  ship  or  vessel,  with  her  tackle,  apparel,  and  furniture,  together  with  all 
materials,  arms,  ammunition,  and  stores,  which  may  have  been  procured  for 
the  building  and  equipment  thereof,  shall  be  forfeited;  one-half  to  the  use  of 
the  informer,  and  the  other  half  to  the  use  of  the  United  States. 

Sec.  4.  And  he  it  further  enacted.  That  if  any  citizen  or  citizens  of  the 
United  States  shall,  without  the  limits  thereof,  fit  out  and  arm,  or  attempt  to 
fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or  shall  knowingly  aid 
or  be  concerned  in  the  furnishing,  fitting  out,  or  arming,  any  private  ship  or 
vessel  of  war,  or  privateer,  with  intent  that  such  ship  or  vessel  shall  be  employed 
to  cruise,  or  commit  hostilities,  upon  the  citizens  of  the  United  States,  or  their 
property,  or  shall  take  the  command  of,  or  enter  on  board  of  any  such  ship  or 
vessel,  for  the  intent  aforesaid,  or  shall  purchase  any  interest  in  any  such  ship 
or  vessel,  with  a  view  to  share  in  the  profits  thereof,  such  person,  so  offending, 
shall  be  deemed  guilty  of  a  high  misdemeanor,  and  fined  not  more  than  ten 
thousand  dollars,  and  imprisoned  not  more  than  ten  years ;  and  the  trial  for  such 
offence,  if  committed  without  the  limits  of  the  United  States,  shall  be  in  the 
district  in  which  the  offender  shall  be  apprehended  or  first  brought. 

Sec.  5.  And  he  it  further  enacted.  That  if  any  persons  shall,  within  the  terri- 
tory or  jurisdiction  of  the  United  States,  increase  or  augment,  or  procure  to  be 
increased  or  augmented,  or  shall  knowingly  be  concerned  in  increasing  or  aug- 
menting, the  force  of  any  ship  of  war  cruiser  or  other  armed  vessel,  which, 
at  the  time  of  her  arrival  within  the  United  States,  was  a  ship  of  war,  or  cruiser, 
or  armed  vessel,  in  the  service  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people,  or  belonging  to  the  subjects  or  citizens  of  any  such  prince  or 
state,  colony,  district,  or  people,  the  same  being  at  war  with  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people,  with  whom  the  United  States  are  at 
peace,  by  adding  to  the  number  of  the  guns  of  such  vessel,  or  by  changing  those 


178  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

on  board  of  her  for  guns  of  a  larger  calibre,  or  by  the  addition  thereto  of  any 
equipment  solely  applicable  to  war,  every  person,  so  offending,  shall  be  deemed 
guilty  of  a  high  misdemeanor,  shall  be  fined  not  more  than  one  thousand  dollars 
and  be  imprisoned  not  more  than  one  year. 

Sec.  6.  And  be  it  further  enacted,  That  if  any  person  shall,  within  the  terri- 
tory or  jurisdiction  of  the  United  States,  begin  or  set  on  foot,  or  provide  or 
prepare  the  means  for,  any  military  expedition  or  enterprise,  to  be  carried  on 
from  thence  against  the  territory  or  dominions  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  people,  with  whom  the  United  States  are  [at] 
peace,  every  person,  so  offending,  shall  be  deemed  guilty  of  a  high  misdemeanor, 
and  shall  be  fined  not  exceeding  three  thousand  dollars,  and  imprisoned  not 
more  than  three  years. 

Sec.  7.  And  be  it  further  enacted,  That  the  district  courts  shall  take  cogni- 
sance of  complaints,  by  whomsoever  instituted,  in  cases  of  captures  made 
within  the  waters  of  the  United  States,  or  within  a  marine  league  of  the  coasts 
or  shores  thereof. 

Sec.  8.  And  be  it  further  enacted,  That  in  every  case  in  which  a  vessel  shall 
be  fitted  out  and  armed,  or  attempted  to  be  fitted  out  and  armed,  or  in  which 
the  force  of  any  vessel  of  war,  cruiser,  or  other  armed  vessel,  shall  be  increased 
or  augmented,  or  in  which  any  military  expedition  or  enterprise  shall  be  begun 
or  set  on  foot,  contrary  to  the  provisions  and  prohibitions  of  this  act ;  and  in 
every  case  of  the  capture  of  a  ship  or  vessel  within  the  jurisdiction  or  protec- 
tion of  the  United  States  as  before  defined,  and  in  every  case  in  which  any  pro- 
cess issuing  out  of  any  court  of  the  United  States  shall  be  disobeyed  or  resisted 
by  any  person  or  persons  having  the  custody  of  any  vessel  of  war,  cruiser,  or 
other  armed  vessel  of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people,  or  of  any  subjects  or  citizens  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  in  every  such  case  it  shall  be  lawful  for  the  President 
of  the  United  States,  or  such  other  person  as  he  shall  have  empowered  for  that 
purpose,  to  employ  such  part  of  the  land  or  naval  forces  of  the  United  States, 
or  of  the  militia  thereof,  for  the  purpose  of  taking  possession  of  and  detaining  any 
such  ship  or  vessel,  with  her  prize  or  prizes,  if  any,  in  order  to  the  execution  of 
the  prohibitions  and  penalties  of  this  act,  and  to  the  restoring  the  prize  or  prizes 
in  the  cases  in  which  restoration  shall  have  been  adjudged,  and  also  for  the  pur- 
pose of  preventing  the  carrying  on  of  any  such  expedition  or  enterprise  from  the 
territories  or  jurisdiction  of  the  United  States  against  the  territories  or  dominions 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom 
the  United  States  are  at  peace. 

Sec.  9.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the  President 
of  the  United  States,  or  such  person  as  he  shall  empower  for  that  purpose,  to 
employ  such  part  of  the  land  or  naval  forces  of  the  United  States,  or  of  the 
militia  thereof,  as  shall  be  necessary  to  compel  any  foreign  ship  or  vessel  to 
depart  the  United  States  in  all  cases  in  which,  by  the  laws  of  nations  or  the 
treaties  of  the  United  States,  they  ought  not  to  remain  within  the  United  States. 

Sec.  10.  And  be  it  further  enacted,  That  the  owners  or  consignees  of  every 
armed  ship  or  vessel  sailing  out  of  the  ports  of  the  United  States,  belonging 
wholly  or  in  part  to  citizens  thereof,  shall  enter  into  bond  to  the  United  States, 
with  sufficient  sureties,  prior  to  clearing  out  the  same,  in  double  the  amount  of 
the  value  of  the  vessel  and  cargo  on  board,  including  her  armament,  that  the 


APPENDIX  179 

said  ship  or  vessel  shall  not  be  employed  by  such  owners  to  cruise  or  commit 
hostilities  against  the  subjects,  citizens,  or  property,  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people,  with  whom  the  United  States  are 
at  peace. 

Sec.ll.  And  be  it  further  enacted,  That  the  collectors  of  the  customs  be,  and 
there  are  hereby,  respectively,  authorized  and  required  to  detain  any  vessel  mani- 
festly built  for  warlike  purposes,  and  about  to  depart  the  United  States,  of 
which  the  cargo  shall  principally  consist  of  arms  and  munitions  of  war,  when 
the  number  of  men  shipped  on  board,  or  other  circumstances,  shall  render 
it  probable  that  such  vessel  is  intended  to  be  employed  by  the  owner  or  owners 
to  cruise  or  commit  hostilities  upon  the  subjects,  citizens,  or  property,  of  any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  until  the  decision  of  the  President  be  had  thereon, 
or  until  the  owner  or  owners  shall  give  such  bond  and  security  as  is  required 
of  the  owners  of  armed  ships  by  the  preceding  section  of  this  act. 

Sec.  12.  And  be  it  further  enacted,  That  the  act  passed  on  the  fifth  day  of 
June,  one  thousand  seven  hundred  and  ninety-four,  entitled,  "An  act  in  addition 
to  the  act  for  the  punishment  of  certain  crimes  against  the  United  States,"  con- 
tinued in  force,  for  a  limited  time,  by  the  act  of  the  second  of  March,  one 
thousand  seven  hundred  and  ninety-seven,  and  perpetuated  by  the  act  passed 
on  the  twenty-fourth  of  April,  one  thousand  eight  hundred,  and  the  act,  passed 
on  the  fourteenth  day  of  June,  one  thousand  seven  hundred  and  ninety-seven,  enti- 
tled "An  act  to  prevent  citizens  of  the  United  States  from  privateering  against 
nations  in  amity  with,  or  against  the  citizens  of,  the  United  States,"  and  the 
act,  passed  the  third  day  of  March,  one  thousand  eight  hundred  and  seventeen, 
entitled,  "An  act  more  effectually  to  preserve  the  neutral  relations  of  the 
United  States."  be,  and  the  same  are  hereby,  severally,  repealed:  Provided, 
nevertheless,  That  persons  having  heretofore  offended  against  any  of  the  acts 
aforesaid,  may  be  prosecuted,  convicted,  and  punished  as  if  the  same  were  not 
repealed,  and  no  forfeiture  heretofore  incurred  by  a  violation  of  any  of  the  acts 
aforesaid  shall  be  affected  by  such  repeal. 

Sec.  13.  And  be  it  further  enacted.  That  nothing  in  the  foregoing  act  shall 
be  construed  to  prevent  the  prosecution  or  punishment  of  treason,  or  any  piracy 
defined  by  the  laws  of  the  United  States. 

Approved,  April  20,  1818. 


An  Act  supplementary  to  an  act  entitled  "An  act  in  addition  to  the 
act  for  the  punishment  of  certain  crimes  against  the  United  States,  and 
to  repeal  the  acts  therein  mentioned,"  approved  twentieth  of  April, 
eighteen  hundred  and  eighteen} 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  That  the  several  collectors,  naval  officers, 
surveyors,  inspectors  of  customs,  the  marshals,  and  deputy  marshals  of  the  United 
States,  and  every  other  officer  who  may  be  specially  empowered  for  the  purpose 

15  Stat.  L.,  212. 


180  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

by  the  President  of  the  United  States,  shall  be,  and  they  are  hereby  respectively 
authorized  and  required  to  seize  and  detain  any  vessel  or  any  arms  or  munitions 
of  war  which  may  be  provided  or  prepared  for  any  military  expedition  or  enter- 
prise against  the  territory  or  dominions  of  any  foreign  Prince  or  State,  or  of  any 
colony,  district  or  people  conterminous  with  the  United  States,  and  with  whom 
they  are  at  peace,  contrary  to  the  sixth  section  of  the  act  passed  on  the  twentieth 
of  April,  eighteen  hundred  and  eighteen,  entitled  "An  act  in  addition  to  the  act 
for  the  punishment  of  certain  crimes  against  the  United  States,  and  to  repeal  the 
acts  therein  mentioned,"  and  retain  possession  of  the  same  until  the  decision  of 
the  President  be  had  thereon,  or  until  the  same  shall  be  released  as  hereiaafter 
directed. 

Sec.  2.  And  he  it  further  enacted,  That  the  several  officers  mentioned  in  the 
foregoing  section  shall  be,  and  they  are  hereby  respectively  authorized  and  re- 
quired to  seize  any  vessel  or  vehicle,  and  all  arms  or  munitions  of  war,  about 
to  pass  the  frontier  of  the  United  States  for  any  place  within  any  foreign  state, 
or  colony,  conterminous  with  the  United  States,  where  the  character  of  the  vessel 
or  vehicle,  and  the  quantity  of  arms  and  munitions,  or  other  circumstances  shall 
furnish  probable  cause  to  believe  that  the  said  vessel  or  vehicle,  arms  or  muni- 
tions of  war  are  intended  to  be  employed  by  the  owner  or  owners  thereof,  or 
any  other  person  or  persons,  with  his  or  their  privity,  in  carrying  on  any  military 
expedition  or  operations  within  the  territory  or  dominions  of  any  foreign  prince 
or  State,  or  any  colony,  district,  or  people  conterminous  with  the  United  States, 
and  with  whom  the  United  States  are  at  peace,  and  detain  the  same  until  the 
decision  of  the  President  be  had  for  the  restoration  of  the  same,  or  until  such 
property  shall  be  discharged  by  the  judgment  of  a  court  of  competent  jurisdic- 
tion :  Provided,  That  nothing  in  this  act  contained  shall  be  constrvied  to  extend 
to,  or  interfere  with  any  trade  in  arms  or  munitions  of  war,  conducted  in  vessels 
by  sea,  with  any  foreign  port  or  place  whatsoever,  or  with  any  other  trade  which 
might  have  been  lawfully  carried  on  before  the  passage  of  this  act,  under  the 
law  of  nations  and  the  provisions  of  the  act  hereby  amended. 

Sec.  3.  And  he  it  further  enacted,  That  it  shall  be  the  duty  of  the  officer  making 
any  seizure  under  this  act,  to  make  application,  with  due  diligence,  to  the  district 
judge  of  the  district  court  of  the  United  States  within  which  such  seizure  may 
be  made,  for  a  warrant  to  justify  the  detention  of  the  property  so  seized ;  which 
warrant  shall  be  granted  only  on  oath  or  affirmation,  showing  that  there  is  prob- 
able cause  to  believe  that  the  property  so  seized  is  intended  to  be  used  in  a  manner 
contrary  to  the  provisions  of  this  act ;  and  if  said  judge  shall  refuse  to  issue 
such  warrant,  or  application  therefor,  shall  not  be  made  by  the  officer  making 
such  seizure  within  a  reasonable  time,  not  exceeding  ten  days  thereafter,  the  said 
property  shall  forthwith  be  restored  to  the  owner.  But  if  the  said  judge  shall 
be  satisfied  that  the  seizure  was  justified  under  the  provisions  of  this  act,  and 
issue  his  warrant  accordingly,  then  the  same  shall  be  detained  by  the  officer  so 
seizing  said  property  until  the  President  shall  order  it  to  be  restored  to  the 
owner  or  claimant,  or  until  it  shall  be  discharged  in  due  course  of  law,  on  the 
petition  of  the  claimant,  as  hereinafter  provided. 

Sec.  4.  And  he  it  further  enacted,  That  the  owner  or  claimant  of  any  property 
seized  under  this  act,  may  file  his  petition  in  the  circuit  or  district  court  of  the 
United  States,  in  the  district  where  such  seizure  was  made,  setting  forth  the  facts 
in  the  case ;  and  thereupon  such  court  shall  proceed,  with  all  convenient  dispatch. 


APPENDIX  181 

after  causing  due  notice  to  be  given  to  the  district  attorney  and  officer  making 
such  seizure,  to  decide  upon  the  said  case,  and  order  restoration  of  the  property, 
unless  it  shall  appear  that  the  seizure  was  authorized  by  this  act :  and  the  circuit 
and  district  courts  shall  have  jurisdiction,  and  are  hereby  vested  with  full  power 
and  authority,  to  try  and  determine  all  cases  which  may  arise  under  this  act ;  and 
all  issues  in  fact  arising  under  it,  shall  be  decided  by  a  jury,  in  the  manner  now 
provided  by  law. 

Sec.  5.  Atid  be  it  further  enacted,  That  whenever  the  officer  making  any  seizure 
under  this  act  shall  have  applied  for  and  obtained  a  warrant  for  the  detention 
of  the  property,  or  the  claimant  shall  have  filed  a  petition  for  its  restoration,  and 
failed  to  obtain  it,  and  the  property  so  seized  shall  have  been  in  the  custody  of 
the  officer  for  the  term  of  three  calendar  months  from  the  date  of  such  seizure, 
it  shall  and  may  be  lawful  for  the  claimant  or  owner  to  file  with  the  officer  a 
bond  to  the  amount  of  double  the  value  of  the  property  so  seized  and  detained, 
with  at  least  two  sureties,  to  be  approved  by  the  judge  of  the  circuit  or  district 
court,  with  a  condition  that  the  property,  when  restored,  shall  not  be  used  or 
employed  by  the  owner  or  owners  thereof,  or  by  any  other  person  or  persons 
with  his  or  their  privity,  in  carrying  on  any  military  expedition  or  operations 
within  the  territory  or  dominions  of  any  foreign  prince  or  State,  or  any  colony, 
district,  or  people,  conterminous  with  the  United  States,  with  whom  the  United 
States  are  at  peace;  and  thereupon  the  said  officer  shall  restore  such  property 
to  the  owner  or  claimant  thus  giving  bond:  Provided,  That  such  restoration 
shall  not  prevent  seizure  from  being  again  made,  in  case  there  may  exist  fresh 
cause  to  apprehend  a  new  violation  of  any  of  the  provisions  of  this  act. 

Sec.  6.  And  be  it  further  enacted,  That  every  person  apprehended  and  com- 
mitted for  trial  for  any  offense  against  the  act  hereby  amended,  shall,  when 
admitted  to  bail  for  his  appearance,  give  such  additional  security  as  the  judge 
admitting  him  to  bail  may  require,  not  to  violate  nor  aid  in  violating,  any  of  the 
provisions  of  the  act  hereby  amended. 

Sec.  7.  And  be  it  further  enacted.  That  whenever  the  President  of  the  United 
States  shall  have  reason  to  believe  that  the  provisions  of  this  act  have  been,  or 
are  likely  to  be  violated,  that  offenses  have  been,  or  are  likely  to  be,  committed 
against  the  provisions  of  the  act  hereby  amended,  within  any  judicial  district, 
it  shall  be  lawful  for  him,  in  his  discretion,  to  direct  the  judge,  marshal,  and 
district  attorney,  of  such  district,  to  attend  at  such  place  within  the  district,  and 
for  such  time,  as  he  may  designate,  for  the  purpose  of  the  more  speedy  and  con- 
venient arrest  and  examination  of  persons  charged  with  the  violation  of  the  act 
hereby  amended;  and  it  shall  be  the  duty  of  every  such  judge,  or  other  officer, 
when  any  such  requisition  shall  be  received  by  him,  to  attend  at  the  place  and 
for  the  time  therein  designated. 

Sec.  8.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the  President  of 
the  United  States,  or  such  person  as  he  may  empower  for  that  purpose,  to  employ 
such  part  of  the  land  or  naval  forces  of  the  United  States,  or  of  the  militia,  as 
shall  be  necessary  to  prevent  the  violation,  and  to  enforce  the  due  execution,  of 
this  act,  and  the  act  hereby  amended. 

Sec.  9.  And  be  it  further  enacted,  That  this  act  shall  continue  in  force  for  the 
period  of  two  years,  and  no  longer. 

Approved,  March  10,   1838. 


182  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Joint  Resolution  To  prohibit  the  export  of  coal  or  other  material 
used  in  war  from  any  seaport  of  the  United  States} 

Resolved,  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America,  in  Congress  assembled,  That  the  President  is  hereby  authorized,  in  his 
discretion,  and  with  such  limitations  and  exceptions  as  shall  seem  to  him  expe- 
dient, to  prohibit  the  export  of  coal  or  other  material  used  in  war  from  any  sea- 
port of  the  United  States  until  otherwise  ordered  by  the  President  or  by  Congress. 

Approved,  April  22,  1898. 


Export  of  Arms,  etc.,  to  the  Dominican  Republic} 

By  the  President  of  the  United  States  of  America, 

A  PROCLAMATION. 

Whereas,  by  a  Joint  Resolution,  approved  April  22,  1898,  entitled  "Joi^^t 
Resolution  to  prohibit  the  export  of  coal  or  other  material  used  in  war  from  any 
sea-port  of  the  United  States,"  the  President  is  "authorized,  in  his  discretion, 
and  with  such  limitations  and  exceptions  as  shall  seem  to  him  expedient,  to  pro- 
hibit the  export  of  coal  or  other  material  used  in  war  from  any  sea-port  of  the 
United  States  until  otherwise  ordered  by  the  President  or  by  Congress ;" 

Now,  Therefore,  I,  Theodore  Roosevelt,  President  of  the  United  States  of 
America,  for  good  and  sufficient  reasons  unto  me  appearing,  and  by  virtue  of  the 
authority  conferred  upon  me  by  the  said  Joint  Resolution,  do  hereby  declare  and 
proclaim  that  the  export  of  arms,  ammunition  and  munitions  of  war  of  every 
kind,  from  any  port  in  the  United  States  or  in  Porto  Rico  to  any  port  in  the 
Dominican  Republic,  is  prohibited,  without  limitation  or  exception,  from  and 
after  the  date  of  this  my  proclamation  until  otherwise  ordered  by  the  President 
or  by  Congress. 

And  I  do  hereby  enjoin  all  good  citizens  of  the  United  States  and  of  Porto 
Rico  and  all  persons  residing  or  being  within  the  territory  or  jurisdiction  thereof 
to  be  governed  accordingly. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 
United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  14th  day  of  October,  in  the  year  of 
our  Lord  one  thousand  nine  hundred   and  five   and  of  the  Inde- 

[seal.]     pendence  of  the  United  States  of  America    the    one    hundred    and 
thirtieth. 

Theodore  Roosevelt. 

By  the  President: 
Elihu  Root, 

Secretary  of  State. 

130  Stat.  L.,  739. 
234  Stat.  L.,  3183. 


APPENDIX 


183 


Joint  Resolution  To  amend  the  joint  resolution  to  prohibit  the  export 
of  coal  or  other  material  used  in  war  from  any  seaport  of  the  United 
States.^ 

Resolved  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  That  the  joint  resolution  to  prohibit  the  export 
of  coal  or  other  material  used  in  war  from  any  sea-port  of  the  United  States, 
approved  April  twenty-second,  eighteen  hundred  and  ninety-eight,  be,  and  hereby 
is,  amended  to  read  as  follows : 

That  whenever  the  President  shall  find  that  in  any  American  country  condi- 
tions of  domestic  violence  exist  which  are  promoted  by  the  use  of  arms  or  muni- 
tions of  war  procured  from  the  United  States,  and  shall  make  proclamation 
thereof,  it  shall  be  unlawful  to  export  except  under  such  limitations  and  excep- 
tions as  the  President  shall  prescribe  any  arms  or  munitions  of  war  from  any 
place  in  the  United  States  to  such  country  until  otherwise  ordered  by  the  Presi- 
dent or  by  Congress. 

Sec.  2.  That  any  shipment  of  material  hereby  declared  unlawful  after  such  a 
proclamation  shall  be  punishable  by  fine  not  exceeding  ten  thousand  dollars,  or 
imprisonment  not  exceeding  two  years,  or  both. 

Approved,  March  14,  1912. 

Export  of  Arms,  etc.,  to  Mexico.'^ 

By  the  President  of  the  United  States  of  America, 

A  PROCLAMATION. 

Whereas,  a  Joint  Resolution  of  Congress,  approved  March  14,  1912,  reads 
and  provides  as  follows:  "That  whenever  the  President  shall  find  that  in  any 
American  country  conditions  of  domestic  violence  exist  which  are  promoted  by 
the  use  of  arms  or  munitions  of  war  procured  from  the  United  States,  and  shall 
make  proclamation  thereof,  it  shall  be  unlawful  to  export  except  under  such  limi- 
tations and  exceptions  as  the  President  shall  prescribe  any  arms  or  munitions  of 
war  from  any  place  in  the  United  States  to  such  country  until  otherwise  ordered 
by  the  President  or  by  Congress;" 

And,  Whereas,  it  is  provided  by  Section  II  of  the  said  Joint  Resolution,  "That 
any  shipment  of  material  hereby  declared  unlawful  after  such  a  proclamation 
shall  be  punishable  by  fine  not  exceeding  ten  thousand  dollars,  or  imprisonment 
not  exceeding  two  years,  or  both;" 

Now,  therefore,  I,  William  Howard  Taft,  President  of  the  United  States  of 
America,  acting  under  and  by  virtue  of  the  authority  conferred  in  me  by  the 
said  Joint  Resolution  of  Congress,  do  hereby  declare  and  proclaim  that  I  have 
found  that  there  exist  in  Mexico  such  conditions  of  domestic  violence  promoted 
by  the  use  of  arms  or  munitions  of  war  procured  from  the  United  States  as  con- 
templated by  the  said  Joint  Resolution ;  and  I  do  hereby  admonish  all  citizens 
of  the  United  States  and  every  person  to  abstain  from  every  violation  of  the 
provisions  of  the  Joint  Resolution  above  set  forth,  hereby  made  applicable  to 

137  Stat.  L.,  630. 
237  Stat.  L..  1733. 


184  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Mexico,  and  I  do  hereby  warn  them  that  all  violations  of  such  provisions  will  be 
rigorously  prosecuted.  And  I  do  hereby  enjoin  upon  all  officers  of  the  United 
States  charged  with  the  execution  of  the  laws  thereof,  the  utmost  diligence  in 
preventing  violations  of  the  said  Joint  Resolution  and  this  my  Proclamation 
issued  thereunder,  and  in  bringing  to  trial  and  punishment  any  offenders  against 
the  same. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 
United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  fourteenth  day  of  March  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  twelve  and  of  the  Inde- 
[sEAL.]     pendence  of  the  United   States   of  America  the  one  hundred  and 
thirty-sixth. 

Wm.  H.  Taft. 

By  the  President: 

Huntington  Wilson, 

Acting  Secretary  of  State. 


Act  of  the  British  Parliament,  "to  prevent  the  Enlisting  or  Engage- 
ment of  His  Majesty's  Subjects  to  serve  in  Foreign  Service,  and  the  iit- 
ting  out  or  equipping,  in  His  Majesty's  Dominions,  Vessels  for  warlike 
purposes,  zmthout  His  Majesty's  License."  [Cap.  69.]^ 

[3d  July,  1819.] 

Whereas,  the  Enlistment  or  Engagement  of  His  Majesty's  Subjects  to  serve 
in  War  in  Foreign  Service,  without  His  Majesty's  Licence,  and  the  fitting  out  and 
equipping  and  arming  of  Vessels  by  His  Majesty's  Subjects,  without  His  Maj- 
esty's Licence,  for  warlike  operations  in  or  against  the  Dominions  or  Territories 
of  any  Foreign  Prince,  State,  Potentate,  or  Persons  exercising  or  assuming  to 
exercise  the  powers  of  Government  in  or  over  any  Foreign  Country,  Colony, 
Province,  or  part  of  any  Province,  or  against  the  Ships,  Goods,  or  Merchandize 
of  any  Foreign  Prince,  State,  Potentate,  or  Persons  as  aforesaid,  or  their  Sub- 
jects, may  be  prejudicial  to  and  tend  to  endanger  the  peace  and  welfare  of  this 
Kingdom :  And  whereas  the  Laws  in  force  are  not  sufficiently  effectual  for  pre- 
venting the  same; 

Be  it  therefore  enacted  by  the  King's  Most  Excellent  Majesty,  by  and  with  the 
advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and  Commons,  in  this 
present  Parliament  assembled,  and  by  the  authority  of  the  same,  That  from  and 
after  the  passing  of  this  Act,  an  Act  passed  in  the  9th  Year  of  the  Reign  of  His 
late  Majesty  King  George  the  Second,  intituled  "An  Act  to  prevent  the  listing 
His  Majesty's  Subjects  to  serve  as  Soldiers  without  His  Majesty's  Licence;"  and 

^Brit.  and  For.  State  Papers,  VI,  130. 


APPENDIX  185 

also  an  Act  passed  in  the  29th  Year  of  the  Reign  of  His  said  late  Majesty  King 
George  the  Second,  intituled  "An  Act  to  prevent  His  Majesty's  Subjects  from 
serving  as  Officers  under  the  French  King;  and  for  better  enforcing  an  Act 
passed  in  the  9th  Year  of  His  present  Majesty's  Reign,  to  prevent  the  enlisting 
His  Majesty's  Subjects  to  serve  as  Soldiers  without  His  Majesty's  Licence;  and 
for  obliging  such  of  His  Majesty's  Subjects  as  shall  accept  Commissions  in  the 
Scotch  Brigade  in  the  Service  of  the  States  General  of  the  United  Provinces,  to 
take  the  Oaths  of  Allegiance  and  Abjuration;"  and  also  an  Act  passed  in  Ireland 
in  the  11th  Year  of  the  Reign  of  His  said  late  Majesty  King  George  the  Second, 
intituled  "An  Act  for  the  more  effectual  preventing  the  enlisting  of  His  Majesty's 
Subjects  to  serve  as  Soldiers  in  Foreign  Service  without  His  Majesty's  Licence;" 
and  also  an  Act  passed  in  Ireland  in  the  19th  Year  of  the  Reign  of  His  said  late 
Majesty  King  George  the  Second,  intituled  "An  Act  for  the  more  effectual  pre- 
venting His  Majesty's  Subjects  from  entering  into  Foreign  Service,  and  for  pub- 
lishing an  Act  of  the  7th  Year  of  King  William  the  Third,  intituled  'An  Act 
to  prevent  Foreign  Education ;'  "  and  all  and  every  the  clauses  and  provisions  in 
the  said  several  Acts  contained,  shall  be  and  the  same  are  hereby  repealed. 

II.  And  be  it  further  declared  and  enacted,  That  if  any  natural-born  Subject 
of  His  Majesty,  His  Heirs  and  Successors,  without  the  leave  or  licence  of  His 
Majesty,  His  Heirs  or  Successors,  for  that  purpose  first  had  and  obtained,  under 
the  Sign  Manual  of  His  Majesty,  His  Heirs  or  Successors,  or  signified  by  Order 
in  Council,  or  by  Proclamation  of  His  Majesty,  His  Heirs  or  Successors,  shall 
take  or  accept,  or  shall  agree  to  take  or  accept,  any  Military  Commission,  or 
shall  otherwise  enter  into  the  Military  Service  as  a  Commissioned  or  Non- 
commissioned Officer,  or  shall  enlist  or  enter  himself  to  enlist,  or  shall  agree  to 
enlist  or  to  enter  himself  to  ser\'e  as  a  Soldier,  or  to  be  employed  or  shall  serve 
in  any  warlike  or  military  operation,  in  the  service  of  or  for  or  under  or  in  aid 
of  any  Foreign  Prince,  State,  Potentate,  Colony,  Province,  or  part  of  any  Prov- 
ince or  People,  or  of  any  Person  or  Persons  exercising  or  assuming  to  exercise 
the  Powers  of  Government  in  or  over  any  Foreign  Country,  Colony,  Province, 
or  part  of  any  Province  or  People,  either  as  an  Officer  or  Soldier,  or  in  any  other 
military  capacity;  or  if  any  natural-born  Subject  of  His  Majesty  shall,  without 
such  leave  or  licence  as  aforesaid,  accept,  or  agree  to  take  or  accept,  any  Com- 
mission, Warrant  or  Appointment  as  an  Officer,  or  shall  enlist  or  enter  himself, 
or  shall  agree  to  enlist  or  enter  himself,  to  serve  as  a  Sailor,  or  Marine,  or  to 
be  employed,  or  engaged,  or  shall  serve  in  and  on  board  any  Ship  or  Vessel  of 
War,  or  in  and  on  board  any  Ship  or  Vessel  used  or  fitted  out,  or  equipped  or 
intended  to  be  used  for  any  warlike  purpose,  in  the  Service  of  or  for  or  under 
or  in  aid  of  any  Foreign  Power,  Prince,  State,  Potentate,  Colony,  Province,  or 
part  of  any  Province  or  People,  or  of  any  Person  or  Persons  exercising  or 
assuming  to  exercise  the  Powers  of  Government  in  or  over  any  Foreign  Country, 
Colony,  Province,  or  part  of  any  Province  or  People ;  or  if  any  natural-born 
Subject  of  His  Majesty  shall,  without  such  leave  and  licence  as  aforesaid,  engage, 
contract,  or  agree  to  go,  or  shall  go  to  any  Foreign  State,  Country,  Colony, 
Province,  or  part  of  any  Province,  or  to  any  place  beyond  the  Seas,  with  an 
intent  or  in  order  to  enlist  or  enter  himself  to  serve,  or  with  intent  to  serve  in 
any  warlike  or  military  operation  whatever,  whether  by  Land  or  by  Sea,  in  the 
service  of  or  for  or  under  or  in  aid  of  any  Foreign  Prince,  State,  Potentate, 
Colony,  Province,  or  part  of  any  Province  or  People,  or  in  the  service  of  or  for 


186  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

or  under  or  in  aid  of  any  Person  or  Persons  exercising  or  assuming  to  exercise 
the  powers  of  Government  in  or  over  any  Foreign  Country,  Colony,  Province, 
or  part  of  any  Province  or  People,  either  as  an  Officer  or  a  Soldier,  or  in  any 
other  military  capacity,  or  as  an  Officer  or  Sailor,  or  Marine,  in  any  such  Ship 
or  Vessel  as  aforesaid,  although  no  enlisting  money  or  pay  or  reward  shall  have 
been  or  shall  be  in  any  or  either  of  the  cases  aforesaid  actually  paid  to  or 
received  by  him,  or  by  any  Person  to  or  for  his  use  or  benefit ;  or  if  any  Person 
whatever,  within  the  United  Kingdom  of  Great  Britain  and  Ireland  or  in  any 
part  of  His  Majesty's  Dominions  elsewhere,  or  in  any  Country,  Colony,  Settle- 
ment, Island,  or  Place  belonging  to  or  subject  to  His  Majesty,  shall  hire,  retain, 
engage,  or  procure,  or  shall  attempt  or  endeavour  to  hire,  retain,  engage  or 
procure,  any  Person  or  Persons  whatever  to  enlist,  or  to  enter  or  engage  to 
enlist.  Or  to  serve  or  to  be  employed  in  any  such  service  or  employment  as  afore- 
said, as  an  Officer,  Soldier,  Sailor,  or  Marine,  either  in  land  or  sea  service,  for 
or  under  or  in  aid  of  any  Foreign  Prince,  State,  Potentate,  Colony,  Province, 
or  part  of  any  Province  or  People,  or  for  or  under  or  in  aid  of  any  Person  or 
Persons  exercising  or  assuming  to  exercise  any  powers  of  Government  as  afore- 
said, or  to  go  or  to  agree  to  go  or  embark  from  any  part  of  His  Majesty's 
Dominions,  for  the  purpose  or  with  intent  to  be  so  enlisted,  entered,  engaged, 
or  employed  as  aforesaid,  whether  any  enlisting  money,  pay,  or  reward  shall 
have  been  or  shall  be  actually  given  or  received,  or  not ;  in  any  or  either  of  such 
cases,  every  Person  so  offending  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  being  convicted  thereof,  upon  any  information  or  indictment,  shall  be 
punishable  by  fine  and  imprisonment,  or  either  of  them,  at  the  discretion  of  the 
Court  before  which  such  offender  shall  be  convicted. 

III.  Provided  always,  and  be  it  enacted,  That  nothing  in  this  Act  contained 
shall  extend  or  be  construed  to  extend  to  render  any  Person  or  Persons  liable 
to  any  punishment  or  penalty  under  this  Act,  who  at  any  time  before  the  1st  day 
of  August,  1819,  within  any  part  of  the  United  Kingdom,  or  of  the  Islands  of 
Jersey,  Guernsey,  Alderney,  or  Sark,  or  at  any  time  before  the  1st  day  of  Novem- 
ber, 1819,  in  any  part  or  place  out  of  the  United  Kingdom,  or  of  the  said 
Islands,  shall  have  taken  or  accepted,  or  agreed  to  take  or  accept  any  Military 
Commission,  or  shall  have  otherwise  enlisted  into  any  Military  Service  as  a 
Commissioned  or  Non-commissioned  Officer,  or  shall  have  enlisted,  or  entered 
himself  to  enlist,  or  shall  have  agreed  to  enlist  or  to  enter  himself  to  serve  as  a 
Soldier,  or  shall  have  served,  or  having  so  served  shall,  after  the  said  1st  day 
of  August,  1819,  continue  to  serve  in  any  warlike  or  military  operation,  either  as 
an  Officer  or  Soldier,  or  in  any  other  military  capacity,  or  shall  have  accepted, 
or  agreed  to  take  or  accept  any  Commission,  Warrant,  or  Appointment  as  an 
Officer,  or  shall  have  enlisted  or  entered  himself  to  serve,  or  shall  have  served, 
or  having  so  served  shall  continue  to  serve  as  a  Sailor  or  Marine,  or  shall  have 
been  employed  or  engaged,  or  shall  have  served,  or  having  so  served  shall, 
after  the  said  1st  day  of  August,  continue  to  serve  in  and  on  board  any  Ship  or 
Vessel  of  War,  used  or  fitted  out,  or  equipped  or  intended  for  any  warlike 
purpose ;  or  shall  have  engaged  or  contracted  or  agreed  to  go,  or  shall  have  gone 
to,  or  having  so  gone  to  shall,  after  the  said  1st  day  of  August,  continue  in  any 
Foreign  State,  Country,  Colony,  Province,  or  part  of  a  Province,  or  to  or  in  any 
place  beyond  the  Seas,  unless  such  Person  or  Persons  shall  embark  at  or  proceed 
from  some  Port  or  Place  within  the  United  Kingdom,  or  the  Islands  of  Jersey, 


APPENDIX  187 

Guernsey,  Alderney,  or  Sark,  with  intent  to  serve  as  an  Officer,  Soldier,  Sailor, 
or  Marine,  contrary  to  the  Provisions  of  this  Act,  after  the  said  1st  day  of 
August,  or  shall  embark  or  proceed  from  some  Port  or  Place  out  of  the  United 
Kingdom,  or  the  Islands  of  Jersey,  Guernsey,  Alderney,  or  Sark,  with  such 
intent  as  aforesaid,  after  the  said  1st  day  of  November,  or  who  shall,  before 
the  passing  of  this  Act,  and  within  the  said  United  Kingdom,  or  the  said  Islands, 
or  before  the  1st  day  of  November,  1819,  in  any  Port  or  Place  out  of  the  said 
United  Kingdom,  or  the  said  Islands,  have  hired,  retained,  engaged,  or  procured, 
or  attempted  or  endeavoured  to  hire,  retain,  engage,  or  procure,  any  Person  or 
Persons  whatever,  to  enlist  or  to  enter,  or  to  engage  to  enlist  or  to  ser\'e,  or  be 
employed  in  any  such  service  or  employment  as  aforesaid,  as  an  Officer,  Soldier, 
Sailor,  or  Marine,  either  in  land  or  sea  service,  or  to  go,  or  agree  to  go  or 
embark  for  the  purpose  or  with  the  intent  to  be  so  enlisted,  entered,  or  engaged, 
or  employed,  contrary  to  the  prohibitions  respectively  in  this  Act  contained,  any 
thing  in  this  Act  contained  to  the  contrary  in  any  wise  notwithstanding;  but  that 
all  and  every  such  Person  and  Persons  shall  be  in  such  state  and  condition,  and 
no  other,  and  shall  be  liable  to  such  fines,  penalties,  forfeitures,  and  disabilities, 
and  none  other,  as  such  Person  or  Persons  was  or  were  liable  and  subject  to 
before  the  passing  of  this  Act,  and  as  such  Person  or  Persons  would  have  been 
in,  and  been  liable  and  subject  to,  in  case  this  Act  and  the  said  recited  Acts 
by  this  Act  repealed  had  not  been  passed  or  made. 

IV.  And  be  it  further  enacted.  That  it  shall  and  may  be  lawful  for  any  Justice 
of  the  Peace  residing  at  or  near  to  any  Port  or  Place  within  the  United  Kingdom 
of  Great  Britain  and  Ireland,  where  any  offence  made  punishable  by  this  Act 
as  a  misdemeanor  shall  be  committed,  on  information  on  oath  of  any  such 
offence,  to  issue  his  warrant  for  the  apprehension  of  the  offender,  and  to  cause 
him  to  be  brought  before  such  Justice,  or  any  Justice  of  the  Peace ;  and  it  shall 
be  lawful  for  the  Justice  of  the  Peace  before  whom  such  offender  shall  be 
brought,  to  examine  into  the  nature  of  the  offence  upon  oath,  and  to  commit 
such  Person  to  gaol,  there  to  remain  until  delivered  by  due  course  of  Law, 
unless  such  offender  shall  give  bail,  to  the  satisfaction  of  the  said  Justice,  to 
appear  and  answer  to  any  information  or  indictment  to  be  preferred  against  him, 
according  to  Law,  for  the  said  offence ;  and  that  all  such  offences  which  shall 
be  committed  within  that  part  of  the  United  Kingdom  called  England,  shall  and 
may  be  proceeded  and  tried  in  His  Majesty's  Court  of  King's  Bench  at  West- 
minster, and  the  Venue  in  such  case  laid  at  Westminster,  or  at  the  Assizes  or 
Session  of  Oyer  and  Terminer  and  Gaol  delivery,  or  at  any  Quarter  or  General 
Sessions  of  the  Peace  in  and  for  the  County  or  Place  where  such  offence  was 
committed:  and  that  all  such  offences  which  shall  be  committed  within  that  part 
of  the  United  Kingdom  called  Ireland,  shall  and  may  be  prosecuted  in  His  Maj- 
esty's Court  of  King's  Bench  at  Dublin,  and  the  Venue  be  laid  at  Dublin,  or  at 
any  Assizes  or  Session  of  Oyer  and  Terminer  and  Gaol  delivery,  or  at  any 
Quarter  or  General  Sessions  of  the  Peace  in  and  for  the  County  or  Place  where 
such  offence  was  committed ;  and  all  such  offences  as  shall  be  committed  in  Scot- 
land, shall  and  may  be  prosecuted  in  the  Court  of  Justiciary  in  Scotland,  or  any 
other  Court  competent  to  try  criminal  offences  committed  within  the  County, 
Shire,  or  Stewartry  within  which  such  offence  was  committed ;  and  where  any 
offence  made  punishable  by  this  Act  as  a  misdemeanor  shall  be  committed  out 
of  the  said  United  Kingdom,  it  shall  be  lawful  for  any  Justice  of  the  Peace 


188  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

residing  near  to  the  Port  or  Place  where  such  offence  shall  be  committed,  on 
information  on  oath  of  any  such  offence,  to  issue  his  warrant  for  the  appre- 
hension of  the  offender,  and  to  cause  him  to  be  brought  before  such  Justice,  or 
any  other  Justice  of  the  Peace  for  such  Place;  and  it  shall  be  lawful  for  the 
Justice  of  the  Peace  before  whom  such  offender  shall  be  brought,  to  examine 
into  the  nature  of  the  offence  upon  oath,  and  to  commit  such  Person  to  gaol, 
there  to  remain  till  delivered  by  due  course  of  Law,  or  otherwise  to  hold  such 
oft'ender  to  bail  to  answer  for  such  offence  in  the  Superior  Court,  competent  to 
try  and  having  jurisdiction  to  try  criminal  offences  committed  in  such  Port  or 
Place;  and  all  such  offences  committed  at  any  Place  out  of  the  said  United 
Kingdom  shall  and  may  t)e  prosecuted  and  tried  in  any  Superior  Court  of  His 
Majesty's  Dominions,  competent  to  try,  and  having  jurisdiction  to  try  criminal 
offences  committed  at  the  Place  where  such  offence  shall  be  committed, 

V.  And  be  it  further  enacted.  That  in  case  any  Ship  or  Vessel  in  any  Port 
or  Place  within  His  Majesty's  Dominions,  shall  have  on  board  any  such  Person 
or  Persons  who  shall  have  been  enlisted  or  entered  to  serve,  or  shall  have 
engaged  or  agreed  or  been  procured  to  enlist  or  enter  or  serve,  or  who  shall  be 
departing  from  His  Majesty's  Dominions  for  the  purpose  and  with  the  intent  of 
enlisting  or  entering  to  serve,  or  to  be  employed,  or  of  serving  or  being  engaged 
or  employed  in  the  service  of  any  Foreign  Prince,  State,  or  Potentate,  Colony, 
Province,  or  part  of  any  Province  or  People,  or  of  any  Person  or  Persons  exer- 
cising or  assuming  to  exercise  the  powers  of  Government  in  or  over  any  Foreign 
Colony,  Province,  or  part  of  any  Province  or  People,  either  as  an  Officer,  Soldier, 
Sailor,  or  Marine,  contrary  to  the  Provisions  of  this  Act,  it  shall  be  lawful  for 
any  of  the  principal  Officers  of  His  Majesty's  Customs  where  any  such  Officers 
of  the  Customs  shall  be,  and  in  any  part  of  His  Majesty's  Dominions  in  which 
there  are  no  Officers  of  His  Majesty's  Customs,  for  any  Governor  or  Persons 
having  the  chief  civil  command,  upon  information  on  oath  given  before  them 
respectively,  which  oath  they  are  hereby  respectively  authorized  and  empowered 
to  administer,  that  such  Person  or  Persons  as  aforesaid  is  or  are  on  board  such 
Ship  or  Vessel,  to  detain  and  prevent  any  such  Ship  or  Vessel,  or  to  cause  such 
Ship  or  Vessel  to  be  detained  and  prevented  from  proceeding  to  sea  on  her  voy- 
age with  such  Persons  as  aforesaid  on  board:  Provided  nevertheless,  that  no 
principal  Officer,  Governor,  or  Person,  shall  act  as  aforesaid,  upon  such  infor- 
mation upon  oath  as  aforesaid,  unless  the  party  so  informing  shall  not  only  have 
deposed  in  such  information  that  the  Person  or  Persons  on  board  such  Ship 
or  Vessel  hath  or  have  been  enlisted  or  entered  to  serve,  or  hath  or  have  en- 
gaged or  agreed  or  been  procured  to  enlist  or  enter  or  serve,  or  is  or  are 
departing  as  aforesaid,  for  the  purpose  and  with  the  intent  of  enlisting  or  en- 
tering to  serve  or  to  be  employed,  or  of  serving,  or  being  engaged  or  employed 
in  such  service  as  aforesaid,  but  shall  also  have  set  forth  in  such  information 
upon  oath,  the  facts  or  circumstances  upon  which  he  forms  his  knowledge  or 
belief,  enabling  him  to  give  such  information  upon  oath ;  and  that  all  and  every 
Person  and  Persons  convicted  of  wilfully  false  swearing  in  any  such  informa- 
tion upon  oath,  shall  be  deemed  guilty  of  and  suffer  the  penalties  on  Persons 
convicted  of  wilful  and  corrupt  perjury. 

VI.  And  be  it  further  enacted,  That  if  any  Master  or  other  Person  having  or 
taking  the  charge  or  command  of  any  Ship  or  Vessel,  in  any  part  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  or  in  any  part  of  His  Majesty's  Domin- 


APPENDIX  189 

ions  beyond  the  seas,  shall  knowingly  and  willingly  take  on  board,  or  if  such 
Master  or  other  Person  having  the  command  of  any  such  Ship  or  Vessel,  or  any 
owner  or  owners  of  any  such  Ship  or  Vessel,  shall  knowingly  engage  to  take  on 
board  any  Person  or  Persons  who  shall  have  been  enlisted  or  entered  to  serve, 
or  shall  have  engaged  or  agreed  or  been  procured  to  enlist  or  enter  or 
serve,  or  who  shall  be  departing  from  His  Majesty's  Dominions  for  the  pur- 
pose and  with  the  intent  of  enlisting  or  entering  to  serve,  or  to  be  employed, 
or  of  serving  or  being  engaged  or  employed  in  any  naval  or  military  service, 
contrary  to  the  Provisions  of  this  Act,  such  Master  or  owner  or  other  Person 
as  aforesaid  shall  forfeit  and  pay  the  sum  of  £50  for  each  and  every  such  Per- 
son so  taken  or  engaged  to  be  taken  on  board ;  and  moreover  every  such  Ship 
or  Vessel,  so  having  on  board,  conveying,  carrying,  or  transporting  any  such 
Person  or  Persons,  shall  and  may  be  seized  and  detained  by  the  Collector,  Comp- 
troller, Surveyor,  or  other  Officer  of  the  Customs,  until  such  Penalty  or  Penal- 
ties shall  be  satisfied  and  paid,  or  until  such  Master  or  Person,  or  the  owner  or 
owners  of  such  Ship  or  Vessel  shall  give  good  and  sufficient  bail,  by  recogni- 
zance before  one  of  his  Majesty's  Justices  of  the  Peace,  for  the  payment  of 
such  penalty  or  penalties. 

VII.  And  be  it  further  enacted,  That  if  any  Person,  within  any  part  of  the 
United  Kingdom,  or  in  any  part  of  His  Majesty's  Dominions  beyond  the  seas, 
shall,  without  the  leave  and  licence  of  His  Majesty  for  that  purpose  first  had 
and  obtained  as  aforesaid,  equip,  furnish,  fit  out,  or  arm,  or  attempt  or  en- 
deavour to  equip,  furnish,  fit  out,  or  arm,  or  procure  to  be  equipped,  furnished, 
fitted  out,  or  armed,  or  shall  knowingly  aid,  assist,  or  be  concerned  in  the  equip- 
ping, furnishing,  fitting  out,  or  arming  of  any  Ship  or  Vessel,  with  intent  or  in 
order  that  such  Ship  or  Vessel  shall  be  employed  in  the  service  of  any  Foreign 
Prince,  State,  or  Potentate,  or  of  any  Foreign  Colony,  Province,  or  part  of  any 
Province  or  People,  or  if  any  Person  or  Persons  exercising  or  assuming  to  ex- 
ercise any  powers  of  Government  in  or  over  any  Foreign  State,  Colony,  Prov- 
ince, or  part  of  any  Province  or  People,  as  a  Transport  or  Store  Ship,  or  with 
intent  to  cruise  or  commit  hostilities  against  any  Prince,  State,  or  Potentate,  or 
against  the  Subjects  or  Citizens  of  any  Prince,  State,  or  Potentate,  or 
against  the  Persons  exercising  or  assuming  to  exercise  the  powers  of  Govern- 
ment in  any  Colony,  Province,  or  part  of  any  Province  or  Country,  or  against 
the  inhabitants  of  any  Foreign  Colony,  Province,  or  part  of  any  Province  or 
Country,  with  whom  His  Majesty  shall  not  then  be  at  War;  or  shall,  within  the 
United  Kingdom,  or  any  of  His  Majesty's  Dominions,  or  in  any  Settlement, 
Colony,  Territory,  Island,  or  Place  belonging  or  subject  to  His  Majesty,  issue 
or  deliver  any  Commission  for  any  Ship  or  Vessel,  to  the  intent  that  such  Ship 
or  Vessel  shall  be  employed  as  aforesaid,  every  such  Person  so  offending  shall 
be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  conviction  thereof,  upon 
any  information  or  indictment,  be  punished  by  fine  and  imprisonment,  or  either 
of  them,  at  the  discretion  of  the  Court  in  wdiich  such  offender  shall  be  con- 
victed; and  every  such  Ship  or  Vessel,  with  the  tackle,  apparel,  and  furniture, 
together  with  all  the  materials,  arms,  ammunition,  and  stores,  which  may  belong 
to  or  be  on  board  of  any  such  Ship  or  Vessel,  shall  be  forfeited,  and  it  shall 
be  lawful  for  any  Officer  of  His  Majesty's  Customs  or  Excise,  or  any  Officer  of 
His  Majesty's  Navy,  who  is  by  Law  empowered  to  make  seizures,  for  any  for- 
feiture incurred  under  any  of  the  Laws  of  Customs,  or  Excise,  or  the  Laws  of 


190  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Trade  and  Navigation,  to  seize  such  Ships  and  Vessels  aforesaid,  and  in  such 
places  and  in  such  manner  in  which  the  Officers  of  His  Majesty's  Customs  or 
Excise  and  the  Officers  of  His  Majesty's  Navy  are  empowered  respectively 
to  make  seizures  under  the  Laws  of  Customs  and  Excise,  or  under  the  Laws  of 
Trade  and  Navigation;  and  that  every  such  Ship  and  Vessel,  with  the  tackle, 
apparel,  and  furniture,  together  with  all  the  materials,  arms,  ammunition,  and 
stores  which  may  belong  to  or  be  on  board  of  such  Ship  or  Vessel,  may  be 
prosecuted  and  condemned  in  the  like  manner,  and  in  such  Courts  as  Ships 
or  Vessels  may  be  prosecuted  and  condemned  for  any  breach  of  the  Laws  made 
for  the  protection  of  the  Revenues  of  Customs  and  Excise,  or  of  the  Laws  of 
Trade  and  Navigation. 

VHL  And  be  it  further  enacted,  That  if  any  Person  in  any  part  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  or  in  any  part  of  His  Majesty's  Domin- 
ions beyond  the  seas,  without  the  leave  and  licence  of  His  Majesty  for  that  pur- 
pose first  had  and  obtained  as  aforesaid,  shall,  by  adding  to  the  number  of  the 
guns  of  such  Vessel,  or  by  changing  those  on  board  for  other  guns,  or  by  the 
addition  of  any  equipment  for  War,  increase  or  augment,  or  procure  to  be  in- 
creased or  augmented,  or  shall  be  knowingly  concerned  in  increasing  or  aug- 
menting the  warlike  Force  of  any  Ship  or  Vessel  of  War,  or  Cruizer,  or  other 
armed  Vessel,  which  at  the  time  of  her  arrival  in  any  part  of  the  United  King- 
dom, or  any  of  His  Majesty's  Dominions,  was  a  Ship  of  War,  Cruizer,  or 
armed  Vessel  in  the  service  of  any  Foreign  Prince,  State,  or  Potentate,  or  of 
any  Person  or  Persons  exercising  or  assuming  to  exercise  any  powers  of  Gov- 
ernment in  or  over  any  Colony,  Province,  or  part  of  any  Province  or  People 
belonging  to  the  Subjects  of  any  such  Prince,  State,  or  Potentate,  or  to  the  in- 
habitants of  any  Colony,  Province,  or  part  of  any  Province  or  Country  under 
the  controul  of  any  Person  or  Persons  so  exercising  or  assuming  to  exercise  the 
powers  of  Government,  every  such  Person  so  offending  shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall,  upon  being  convicted  thereof,  upon  any  informa- 
tion or  indictment,  be  punished  by  fine  and  imprisonment,  or  either  of  them,  at 
the  discretion  of  the  Court  before  which  such  offender  shall  be  convicted. 

IX.  And  be  it  further  enacted,  That  offences  made  punishable  by  the  Provi- 
sions of  this  Act,  committed  out  of  the  United  Kingdom,  may  be  prosecuted  and 
tried  in  His  Majesty's  Court  of  King's  Bench  at  Westminster,  and  the  Venue 
in  such  case  laid  at  Westminster,  in  the  County  of  Middlesex. 

X.  And  be  it  further  enacted.  That  any  penalty  or  forfeiture  inflicted  by  this 
Act,  may  be  prosecuted,  sued  for,  and  recovered,  by  Action  of  Debt,  Bill,  Plaint, 
or  information,  in  any  of  His  Majesty's  Courts  of  Record,  at  Westminster,  or 
Dublin,  or  in  the  Court  of  Exchequer,  or  in  the  Court  of  Session  in  Scotland,  in 
the  name  of  His  Majesty's  Attorney  General  for  England  or  Ireland,  or  His 
Majesty's  Advocate  for  Scotland  respectively,  or  in  the  name  of  any  Person 
or  Persons  whatsoever;  wherein  no  essoign,  protection,  privilege,  wager  of  law, 
nor  more  than  one  imparlance  shall  be  allowed ;  and  in  every  Action  or  Suit  the 
Person  against  whom  judgment  shall  be  given  for  any  penalty  or  forfeiture 
under  this  Act  shall  pay  double  costs  of  suit ;  and  every  such  Action  or  Suit  shall 
and  may  be  brought  at  any  time  within  12  months  after  the  offence  committed, 
and  not  afterwards ;  and  one  moiety  of  every  penalty  to  be  recoverel  by  virtue 
of  this  Act  shall  go  and  be  applied  to  His  Majesty,  His  Heirs  or  Successors, 


APPENDIX  191 

and  the  other  moiety  to  the  use  of  such  Person  or  Persons  as  shall  first  sue  for 
the  same,  after  deducting  the  charges  of  prosecution  from  the  whole. 

XL  And  be  it  further  enacted,  That  if  any  Action  or  Suit  shall  be  commenced, 
either  in  Great  Britain  or  elsewhere,  against  any  Person  or  Persons  for  any 
thing  done  in  pursuance  of  this  Act,  all  rules  and  regulations,  privileges  and  pro- 
tections, as  to  maintaining  or  defending  any  Suit  or  Action,  and  pleading  there- 
in, or  any  costs  thereon,  in  relation  to  any  acts,  matters,  or  things,  done,  or  that 
may  be  done  by  any  Officer  of  Customs  or  Excise,  or  by  any  Officer  of  His 
Majesty's  Navy,  under  any  Act  of  Parliament  in  force  on  or  immediately  be- 
fore the  passing  of  this  Act,  for  the  protection  of  the  Revenues  of  Customs  and 
Excise,  or  prevention  of  smuggling,  shall  apply  and  be  in  full  force  in  any  such 
Action  or  Suit  as  shall  be  brought  for  any  thing  done  in  pursuance  of  this  Act, 
in  as  full  and  ample  a  manner  to  all  intents  and  purposes  as  if  the  same  privi- 
leges and  protections  were  repeated  and  re-enacted  in  this  Act. 

XII.  Provided  always,  and  be  it  further  enacted,  That  nothing  in  this  Act  con- 
tained shall  extend,  or  be  construed  to  extend,  to  subject  to  any  penalty  any 
Person  who  shall  enter  into  the  military  service  of  any  Prince,  State,  or  Poten- 
tate in  Asia,  with  leave  or  licence  signified  in  the  usual  manner,  from  the  Gov- 
ernor-General in  Council,  or  Vice-President  in  Council,  of  Fort  William  in 
Bengal,  or  in  conformity  with  any  orders  or  regulations  issued  or  sanctioned  by 
such  Governor-General  or  Vice-President  in  Council. 


Act  of  the  British  Parliament,  to  regulate  the  conduct  of  Her  Majes- 
ty's Subjects  during  the  existence  of  Hostilities  betzveen  Foreign  States 
with  which  Her  Majesty  is  at  Peace  (Foreign  Enlistment) .  [33  &  34 
Vict.,  c.  90.]^ 

[9th  August,  1870.] 

Whereas  it  is  expedient  to  make  provision  for  the  regulation  of  the  conduct 
of  Her  Majesty's  subjects  during  the  existence  of  hostilities  between  foreign 
States  with  which  Her  Majesty  is  at  Peace: 

Be  it  enacted  by  the  Queen's  Most  Excellent  Majesty,  by  and  with  the  ad- 
vice and  consent  of  the  Lords  Spiritual  and  Temporal,  and  Commons,  in  this 
present  Parliament  assembled,  and  by  the  authority  of  the  same,  as  follows: 

Preliminary. 

1.  This  Act  may  be  cited  for  all  purposes  as  "The  Foreign  Enlistment  Act, 
1870." 

2.  This  Act  shall  extend  to  all  the  dominions  of  Her  Majesty,  including  the 
adjacent  territorial  waters. 

3.  This  Act  shall  come  into  operation  in  the  United  Kingdom  immediately  on 
the  passing  thereof,  and  shall  be  proclaimed  in  every  British  possession  by  the 
Governor  thereof  as  soon  as  may  be  after  he  receives  notice  of  this  Act,  and 

'^Brit.  and  For.  State  Papers,  LX,  278. 


192  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

shall  come  into  operation  in  that  British  possession  on  the  day  of  such  procla- 
mation, and  the  time  at  which  this  Act  comes  into  operation  in  any  place  is,  as 
respects  such  place,  in  this  Act  referred  to  as  the  commencement  of  this  Act. 

Illegal  Enlistment. 

4.  If  any  person,  without  the  licence  of  Her  Majesty,  being  a  British  subject, 
within  or  without  Her  Majesty's  dominions,  accepts  or  agrees  to  accept  any 
commission  or  engagement  in  the  military  or  naval  service  of  any  foreign  State 
at  war  with  any  foreign  State  at  peace  with  Her  Majesty,  and  in  this  Act  re- 
ferred to  as  a  friendly  State,  or  whether  a  British  subject  or  not  within  Her 
Majesty's  dominions,  induces  any  other  person  to  accept  or  agree  to  accept  any 
commission  or  engagement  in  the  military  or  naval  service  of  any  such  foreign 
State  as  aforesaid — 

He  shall  be  guilty  of  an  offence  against  this  Act,  and  shall  be  punishable  by 
fine  and  imprisonment,  or  either  of  such  punishments,  at  the  discretion  of  the 
court  before  which  the  offender  is  convicted;  and  imprisonment,  if  awarded, 
may  be  either  with  or  without  hard  labour. 

5.  n  any  person,  without  the  licence  of  Her  Majesty,  being  a  British  subject, 
quits  or  goes  on  board  any  ship  with  a  view  of  quitting  Her  Majesty's  domin- 
ions, with  intent  to  accept  any  commission  or  engagement  in  the  military  or 
naval  service  of  any  foreign  State  at  war  with  a  friendly  State,  or,  whether  a 
British  subject  or  not.  within  Her  Majesty's  dominions,  induces  any  other  per- 
son to  quit  or  to  go  on  board  any  ship  with  a  view  of  quitting  Her  Majesty's 
dominions  with  the  like  intent — 

He  shall  be  guilty  of  an  offence  against  this  Act,  and  shall  be  punishable  by 
fine  and  imprisonment,  or  either  of  such  punishments,  at  the  discretion  of  the 
court  before  which  the  offender  is  convicted ;  and  imprisonment,  if  awarded, 
may  be  either  with  or  without  hard  labour. 

6.  li  any  person  induces  any  other  person  to  quit  Her  Majesty's  dominions 
or  to  embark  on  any  ship  within  Her  Majesty's  dominions  under  a  misrepresen- 
tation or  false  representation  of  the  service  in  which  such  person  is  to  be 
engaged,  with  the  intent  or  in  order  that  such  person  may  accept  or  agree  to 
accept  any  commission  or  engagement  in  the  military  or  naval  service  of  any 
foreign  State  at  war  with  a  friendly  State — 

He  shall  be  guilty  of  an  offence  against  this  Act,  and  shall  be  punishable  by 
fine  and  imprisonment,  or  either  of  such  punishments,  at  the  discretion  of  the 
court  before  which  the  offender  is  convicted ;  and  imprisonment,  if  awarded,  may 
be  either  with  or  without  hard  labour. 

7.  li  the  master  or  owner  of  any  ship,  without  the  licence  of  Her  Majesty, 
knowingly  either  takes  on  board,  or  engages  to  take  on  board,  or  has  on  board 
such  ship  within  Her  Majesty's  dominions  any  of  the  following  persons,  in  this 
Act  referred  to  as  illegally  enlisted  persons ;  that  is  to  say : 

(1.)  Any  person  who,  being  a  British  subject  within  or  without  the  dominions 
of  Her  Majesty,  has,  without  the  licence  of  Her  Majesty,  accepted  or  agreed  to 
accept  any  commission  or  engagement  in  the  military  or  naval  service  of  any 
foreign  State  at  war  with  any  friendly  State : 

(2.)  Any  person,  being  a  British  subject,  who,  without  the  licence  of  Her 
Majesty,  is  about  to  quit  Her  Majesty's  dominions  with  intent  to  accept  any 


APPENDIX  193 

commission  or  engagement  in  the  military  or  naval  service  of  any  foreign  State 
at  war  with  a  friendly  State : 

(3.)  Any  person  who  has  been  induced  to  embark  under  a  misrepresentation 
or  false  representation  of  the  service  in  which  such  person  is  to  be  engaged,  with 
the  intent  or  in  order  that  such  person  may  accept  or  agree  to  accept  any  com- 
mission or  engagement  in  the  military  or  naval  service  of  any  foreign  State 
at  war  with  a  friendly  State ;  such  master  or  owner  shall  be  guilty  of  an  offence 
against  this  Act,  and  the  following  consequences  shall  ensue ;  that  is  to  say : 

(1.)  The  offender  shall  be  punishable  by  fine  and  imprisonment,  or  either  of 
such  punishments,  at  the  discretion  of  the  court  before  which  the  offender  is 
convicted ;  and  imprisonment,  if  awarded,  may  be  either  with  or  without  hard 
labour:  and 

(2.)  Such  ship  shall  be  detained  until  the  trial  and  conviction  or  acquittal  of 
the  master  or  owner,  and  until  all  penalties  inflicted  on  the  master  or  owner  have 
been  paid,  or  the  master  or  owner  has  given  security  for  the  payment  of  such 
penalties  to  the  satisfaction  of  two  justices  of  the  peace,  or  other  magistrate  or 
magistrates  having  the  authority  of  two  justices  of  the  peace :  and 

(3.)  All  illegally  enlisted  persons  shall  immediately  on  the  discovery  of  the 
offence  be  taken  on  shore,  and  shall  not  be  allowed  to  return  to  the  ship. 

Illegal  Shipbuilding  and  Illegal  Expeditions. 

8.  If  any  person  within  Her  Majesty's  dominions,  without  the  licence  of  Her 
Majesty,  does  any  of  the  following  acts;  that  is  to  say: 

(1.)  Builds  or  agrees  to  build,  or  causes  to  be  built  any  ship  with  intent  or 
knowledge,  or  having  reasonable  cause  to  believe  that  the  same  shall  or  will 
be  employed  in  the  military  or  naval  service  of  any  foreign  State  at  war  with 
any  friendly  State:  or 

(2.)  Issues  or  delivers  any  commission  for  any  ship  with  intent  or  knowl- 
edge, or  having  reasonable  cause  to  believe  that  the  same  shall  or  will  be  em- 
ployed in  the  military  or  naval  service  of  any  foreign  State  at  war  with  any 
friendly  State :  or 

(3.)  Equips  any  ship  with  intent  or  knowledge,  or  having  reasonable  cause 
to  believe  that  the  same  shall  or  will  be  employed  in  the  military  or  naval  ser- 
vice of  any  foreign  State  at  war  with  any  friendly  State :  or 

(4.)  Despatches,  or  causes  or  allows  to  be  despatched,  any  ship  with  intent 
or  knowledge,_  or  having  reasonable  cause  to  believe  that  the  same  shall  or  will 
be  employed  in  the  military  or  naval  service  of  any  foreign  State  at  war  with 
any^  friendly  State ;  such  person  shall  be  deemed  to  have  committed  an  off'ence 
against  this  Act.  and  the  following  consequences  shall  ensue: 

(1.)  The  offender  shall  be  punishable  by  fine  and  imprisonment,  or  either 
of  such  punishments,  at  the  discretion  of  the  court  before  which  the  offender 
is  convicted;  and  imprisonment,  if  awarded,  may  be  either  with  or  without  hard 
labour. 

(2.)  The  ship  in  respect  of  which  any  such  offence  is  committed,  and  her 
equipment,  shall  be  forfeited  to  Her  Majesty:  provided  that  a  person  building, 
causing  to  be  built,  or  equipping  a  ship  in  any  of  the  cases  aforesaid,  in  pur- 
suance of  a  contract  made  before  the  commencement  of  such  war  as  aforesaid, 
shall  not  be  liable  to  any  of  the  penalties  imposed  by  this  section  in  respect  of 


194  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

such  building  or  equipping  if  he  satisfies  the  conditions  following   (that  is  to 

say)-  .    ,  .     . 

(1.)  If  forthwith  upon  a  proclamation  of  neutrality  being  issued  by  Her  Maj- 
esty he  gives  notice  to  the  Secretary  of  State  that  he  is  so  building,  causing  to 
be  built,  or  equipping  such  ship,  and  furnishes  such  particulars  of  the  contract 
and  of  any  matters  relating  to,  or  done,  or  to  be  done  under  the  contract  as  may 
be  required  by  the  Secretary  of  State : 

(2.)  If  he  gives  such  security,  and  takes  and  permits  to  be  taken  such  other 
measures,  if  any,  as  the  Secretary  of  State  may  prescribe  for  ensuring  that 
such  ship  shall  not  be  despatched,  delivered,  or  removed  without  the  licence  of 
Her  Majesty  until  the  termination  of  such  war  as  aforesaid. 

9.  Where  any  ship  is  built  by  order  of  or  on  behalf  of  any  foreign  State  when 
at  war  with  a  friendly  State,  or  is  delivered  to  or  to  the  order  of  such  foreign 
State,  or  any  person  who  to  the  knowledge  of  the  person  building  is  an  agent 
of  such  foreign  State,  or  is  paid  for  by  such  foreign  State  or  such  agent,  and 
is  employed  in  the  military  or  naval  service  of  such  foreign  State,  such  ship 
shall,  until  the  contrary  is  proved,  be  deemed  to  have  been  built  with  a  view  to 
being  so  employed,  and  the  burden  shall  lie  on  the  builder  of  such  ship  of  proving 
that  he  did  not  know  that  the  ship  was  intended  to  be  so  employed  in  the  mili- 
tary or  naval  service  of  such  foreign  State. 

10.  If  any  person  within  the  dominions  of  Her  Majesty,  and  without  the  li- 
cence of  Her  Majesty: 

By  adding  to  the  number  of  the  guns,  or  by  changing  those  on  board  for  other 
guns,  or  by  the  addition  of  any  equipment  for  war,  increases  or  augments,  or 
procures  to  be  increased  or  augmented,  or  is  knowingly  concerned  in  increas- 
ing or  augmenting  the  warlike  force  of  any  ship  which,  at  the  time  of  her  being 
within  the  dominions  of  Her  Majesty,  was  a  ship  in  the  military  or  naval  service 
of  any  foreign  State  at  war  with  any  friendly  State. 

Such  person  shall  be  guilty  of  an  offence  against  this  Act,  and  shall  be  pun- 
ishable by  fine  and  imprisonment,  or  either  of  such  punishments,  at  the  dis- 
cretion of  the  court  before  which  the  offender  is  convicted;  and  imprisonment, 
if  awarded,  may  be  either  with  or  without  hard  labour. 

11.  If  any  person  within  the  limits  of  Her  Majesty's  dominions,  and  with- 
out the  licence  of  Her  Majesty, 

Prepares  or  fits  out  any  naval  or  military  expedition  to  proceed  against  the 
dominions  of  any  friendly  State,  the  following  consequences  shall  ensue: 

(1.)  Every  person  engaged  in  such  preparation  or  fitting  out,  or  assisting 
therein,  or  employed  in  any  capacity  in  such  expedition,  shall  be  guilty  of  an 
offence  agaitist  this  Act,  and  shall  be  punishable  by  fine  and  imprisonment,  or 
either  of  such  punishments,  at  the  discretion  of  the  court  before  which  the  of- 
fender is  convicted;  and  imprisonment,  if  awarded,  may  be  either  with  or 
without  hard  labour. 

(2.)  All  ships,  and  their  equipments,  and  all  arms  and  munitions  of  war,  used 
in  or  forming  part  of  such  expedition,  shall  be  forfeited  to  Her  Majesty. 

12.  Any  person  who  aids,  abets,  counsels,  or  procures  the  commission  of  any 
offence  against  this  Act  shall  be  liable  to  be  tried  and  punished  as  a  principal 
offender. 

^13.  The  term  of  imprisonment  to  be  awarded  in  respect  of  any  offence  against 
this  Act  shall  not  exceed  two  years. 


APPENDIX  195 

Illegal  Price. 

14.  If,  during  the  continuance  of  any  war  in  which  Her  Majesty  may  be  neu- 
tral, any  ship,  goods,  or  merchandize  captured  as  prize  of  war  within  the  terri- 
torial jurisdiction  of  Her  Majesty,  in  violation  of  the  neutrality  of  this  realm, 
or  captured  by  any  ship  which  may  have  been  built,  equipped,  commissioned,  or 
despatched,  or  the  force  of  which  may  have  been  augmented,  contrary  to  the 
provisions  of  this  Act,  are  brought  within  the  limits  of  Her  Majesty's  dominions 
by  the  captor,  or  any  agent  of  the  captor,  or  by  any  person  having  come  into 
possession  thereof  with  knowledge  that  the  same  was  prize  of  war  so  captured 
as  aforesaid,  it  shall  be  lawful  for  the  original  owner  of  such  prize,  or  his 
agent,  or  for  any  person  authorised  in  that  behalf  by  the  Government  of  the 
foreign  State  to  which  such  owner  belongs,  to  make  application  to  the  Court  of 
Admiralty  for  seizure  and  detention  of  such  prize,  and  the  Court  shall,  on  due 
proof  of  the  facts,  order  such  prize  to  be  restored. 

Every  such  order  shall  be  executed  and  carried  into  effect  in  the  same  man- 
ner, and  subject  to  the  same  right  of  appeal,  as  in  case  of  any  order  made  in 
the  exercise  of  the  ordinary  jurisdiction  of  such  court ;  and  in  the  meantime,  and 
until  a  final  order  has  been  made  on  such  application,  the  court  shall  have 
power  to  make  all  such  provisional  and  other  orders  as  to  the  care  or  custody  of 
such  captured  ship,  goods,  or  merchandise,  and  (if  the  same  be  of  a  perishable 
nature,  or  incurring  risk  of  deterioration)  for  the  sale  thereof,  and  with  respect 
to  the  deposit  or  investment  of  the  proceeds  of  any  such  sale,  as  may  be  made 
by  such  court  in  the  exercise  of  its  ordinary  jurisdiction. 

General  Provision. 

15.  For  the  purposes  of  this  Act,  a  licence  by  Her  Majesty  shall  be  under  the 
sign  manual  of  Her  Majesty,  or  be  signified  by  Order  in  Council  or  by  Proclama- 
tion of  Her  Majesty. 

Legal  Procedure. 

16.  Any  offence  against  this  Act  shall,  for  all  purposes  of  and  incidental  to 
the  trial  and  punishment  of  any  person  guilty  of  any  such  offence,  be  deemed 
to  have  been  committed,  either  in  the  place  in  which  the  offence  was  wholly 
or  partly  committed,  or  in  any  place  within  Her  Majesty's  dominions  in  which 
the  person  who  committed  such  offence  may  be. 

17.  Any  offence  against  this  Act  may  be  described  in  any  indictment  or  other 
document  relating  to  such  offence,  in  cases  where  the  mode  of  trial  requires 
such  a  description,  as  having  been  committed  at  the  place  where  it  was  wholly 
or  partly  committed,  or  it  may  be  averred  generally  to  have  been  committed 
within  Her  Majesty's  dominions,  and  the  venue  or  local  description  in  the  margin 
may  be  that  of  the  county,  city,  or  place  in  which  the  trial  is  held. 

18.  The  following  authorities,  that  is  to  say,  in  the  United  Kingdom  any 
judge  of  a  superior  court,  in  any  other  place  within  the  jurisdiction  of  any 
British  court  of  justice,  such  court,  or,  if  there  are  more  courts  than  one,  the 
court  having  the  highest  criminal  jurisdiction  in  that  place,  may,  by  warrant  or 
instrument  in  the  nature  of  a  warrant  in  this  section  included  in  the  term  "war- 
rant," direct  that  any  offender  charged  with  an  offence  against  this  Act  shall 


196  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

be  removed  to  some  other  place  in  Her  Majesty's  dominions  for  trial  in  cases 
where  it  appears  to  the  authority  granting  the  warrant  that  the  removal  of  such 
offender  would  be  conducive  to  the  interests  of  justice,  and  any  prisoner  so  re- 
moved shall  be  triable  at  the  place  to  which  he  is  removed,  in  the  same  manner  as 
if  his  offence  had  been  committed  at  such  place. 

Any  warrant  for  the  purposes  of  this  section  may  be  addressed  to  the  master 
of  any  ship  or  to  any  other  person  or  persons,  and  the  person  or  persons  to 
whom  such  warrant  is  addressed  shall  have  power  to  convey  the  prisoner  therein 
named  to  any  place  or  places  named  in  such  warrant,  and  to  deliver  him,  when 
arrived  at  such  place  or  places,  into  the  custody  of  any  authority  designated  by 
such  warrant. 

Every  prisoner  shall,  during  the  time  of  his  removal  under  any  such  war- 
rant as  aforesaid,  be  deemed  to  be  in  the  legal  custody  of  the  person  or  persons 
empowered  to  remove  him. 

19.  All  proceedings  for  the  condemnation  and  forfeiture  of  a  ship,' or  ship 
and  equipment,  or  arms  and  munitions  of  war,  in  pursuance  of  this  Act  shall 
require  the  sanction  of  the  Secretary  of  State  or  such  chief  executive  authority 
as  is  in  this  Act  mentioned,  and  shall  be  had  in  the  Court  of  Admiralty,  and  not 
in  any  other  court;  and  the  Court  of  Admiralty  shall,  in  addition  to  any  power 
given  to  the  court  by  this  Act,  have  in  respect  of  any  ship  or  other  matter 
brought  before  it  in  pursuance  of  this  Act  all  powers  which  it  has  in  the  case  of 
a  ship  or  matter  brought  before  it  in  the  exercise  of  its  ordinary  jurisdiction. 

20.  Where  any  oft'ence  against  this  Act  has  been  committed  by  any  person  by 
reason  whereof  a  ship,  or  ship  and  equipment,  or  arms  and  munitions  of  war, 
has  or  have  become  liable  to  forfeiture,  proceedings  may  be  instituted  contem- 
poraneously or  not,  as  may  be  thought  fit,  against  the  oft"ender  in  any  court  hav- 
ing jurisdiction  of  the  offence,  and  against  the  ship,  or  ship  and  equipment,  or 
arms  and  munitions  of  war,  for  the  forfeiture  in  the  Court  of  Admiralty ;  but  it 
shall  not  be  necessary  to  take  proceedings  against  the  offender  because  proceed- 
ings are  instituted  for  the  forfeiture,  or  to  take  proceedings  for  the  forfeiture 
because  proceedings  are  taken  against  the  offender. 

21.  The  following  officers,  that  is  to  say — 

(1.)  Any  officer  of  customs  in  the  United  Kingdom,  subject  nevertheless  to 
any  special  or  general  instructions  from  the  Commissioners  of  Customs  or  any 
officer  of  the  Board  of  Trade,  subject  nevertheless  to  any  special  or  general 
instructions  from  the  Board  of  Trade ; 

(2.)  Any  officer  of  customs  or  public  officer  in  any  British  possession,  sub- 
ject nevertheless  to  any  special  or  general  instructions  from  the  governor  of 
such  possession ; 

(3.)  Any  commissioned  officer  on  full  pay  in  the  military  service  of  the 
Crown,  subject  nevertheless  to  any  special  or  general  instructions  from  his  com- 
manding officer ; 

(4.)  Any  commissioned  officer  on  full  pay  in  the  naval  service  of  the  Crown, 
subject  nevertheless  to  any  special  or  general  instructions  from  the  Admiralty 
or  his  superior  officer; 

May  seize  or  detain  any  ship  liable  to  be  seized  or  detained  in  pursuance  of 
this  Act,  and  such  officers  are  in  this  Act  referred  to  as  the  "local  authority;" 
but  nothing  in  this  Act  contained  shall  derogate  from  the  power  of  the  Court  of 
Admiralty  to  direct  any  ship  to  be  seized  or  detained  by  any  officer  by  whom 


APPENDIX  197 

such  court  may  have  power  under  its  ordinary  jurisdiction  to  direct  a  ship  to 
be  seized  or  detained. 

22.  Any  officer  authorised  to  seize  or  detain  any  ship  in  respect  of  any  offence 
against  this  Act  may,  for  the  purpose  of  enforcing  such  seizure  or  detention, 
call  to  his  aid  any  constable  or  officers  of  police,  or  any  officers  of  Her  Majesty's 
army  or  navy  or  marines,  or  any  excise  officers  or  officers  of  Customs,  or  any 
harbour-master  or  dock-master,  or  any  officers  having  authority  by  law  to  make 
seizures  of  ships,  and  may  put  on  board  any  ship  so  seized  or  detained  any  one 
or  more  of  such  officers  to  take  charge  of  the  same,  and  to  enforce  the  pro- 
visions of  this  Act,  and  any  officer  seizing  or  detaining  any  ship  under  this  Act 
may  use  force,  if  necessary,  for  the  purpose  of  enforcing  seizure  or  detention, 
and  if  any  person  is  killed  or  maimed  by  reason  of  his  resisting  such  officer  in 
the  execution  of  his  duties,  or  any  person  acting  under  his  orders,  such  officer 
so  seizing  or  detaining  the  ship,  or  other  person,  shall  be  freely  and  fully  indem- 
nified as  well  against  the  Queen's  Majesty,  her  heirs  and  successors,  as  against 
all  persons  so  killed,  maimed,  or  hurt. 

23.  If  the  Secretary  of  State  or  the  chief  executive  authority  is  satisfied  that 
there  is  a  reasonable  and  probable  cause  for  believing  that  a  ship  within  Her 
Majesty's  dominions  has  been  or  is  being  built,  commissioned,  or  equipped  con- 
trary to  this  Act,  and  is  about  to  be  taken  beyond  the  limits  of  such  dominions, 
or  that  a  ship  is  about  to  be  despatched  contrary  to  this  Act,  such  Secretary 
of  State  or  chief  executive  authority  shall  have  power  to  issue  a  warrant  stating 
that  there  is  reasonable  and  probable  cause  for  believing  as  aforesaid,  and  upon 
such  warrant  the  local  authority  shall  have  power  to  seize  and  search  such  ship, 
and  to  detain  the  same  until  it  has  been  either  condemned  or  released  by  pro- 
cess of  law,  or  in  manner  hereinafter  mentioned. 

The  owner  of  the  ship  so  detained,  or  his  agent,  may  apply  to  the  Court  of 
Admiralty  for  its  release,  and  the  court  shall  as  soon  as  possible  put  the  matter 
of  such  seizure  and  detention  in  course  of  trial  between  the  applicant  and  the 
Crown. 

If  the  applicant  establish  to  the  satisfaction  of  the  court  that  the  ship  was  not 
and  is  not  being  built,  commissioned,  or  equipped,  or  intended  to  be  despatched 
contrary  to  this  Act,  the  ship  shall  be  released  and  restored. 

If  the  applicant  fail  to  establish  to  the  satisfaction  of  the  court  that  the  ship 
was  not  and  is  not  being  built,  commissioned,  or  equipped,  or  intended  to  be 
despatched  contrary  to  this  Act,  then  the  ship  shall  be  detained  till  released  by 
order  of  the  Secretary  of  State  or  chief  executive  authority. 

The  court  may  in  cases  where  no  proceedings  are  pending  for  its  condemna- 
tion release  any  ship  detained  under  this  section  on  the  owner  giving  security  to 
the  satisfaction  of  the  court  that  the  ship  shall  not  be  employed  contrary  to 
this  Act,  notwithstanding  that  the  applicant  may  have  failed  to  establish  to  the 
satisfaction  of  the  court  that  the  ship  was  not  and  is  not  being  built,  commis- 
sioned or  intended  to  be  despatched  contrary  to  this  Act.  The  Secretary  of 
State  or  the  chief  executive  authority  may  likewise  release  any  ship  detained 
under  this  section  on  the  owner  giving  security  to  the  satisfaction  of  such  Sec- 
retary of  State  or  chief  executive  authority  that  the  ship  shall  not  be  employed 
contrary  to  this  Act,  or  may  release  the  ship  without  such  security  if  the  Sec- 
retary of  State  or  chief  executive  authority  think  fit  so  to  release  the  same. 

If  the  court  be  of  opinion  that  there  was  not  reasonable  and  probable  cause 


198  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

for  the  detention,  and  if  no  such  cause  appear  in  the  course  of  the  proceedings, 
the  court  shall  have  power  to  declare  that  the  owner  is  to  be  indemnified  by 
the  payment  of  costs  and  damages  in  respect  of  the  detention,  the  amount  thereof 
to  be  assessed  by  the  court,  and  any  amount  so  assessed  shall  be  payable  by 
the  Commissioners  of  the  Treasury  out  of  any  moneys  legally  applicable  for 
that  purpose.  The  Court  of  Admiralty  shall  also  have  power  to  make  a  like 
order  for  the  indemnity  of  the  owner,  on  the  application  of  such  owner  to  the 
court,  in  a  summary  way,  in  cases  where  the  ship  is  released  by  the  order  of 
the  Secretary  of  State  or  the  chief  executive  authority,  before  any  application 
is  made  by  the  owner  or  his  agent  to  the  court  for  such  release. 

Nothing  in  this  section  contained  shall  affect  any  proceedings  instituted  or  to 
be  instituted  for  the  condemnation  of  any  ship  detained  under  this  section  where 
such  ship  is  liable  to  forfeiture,  subject  to  this  provision,  that  if  such  ship  is  re- 
stored in  pursuance  of  this  section  all  proceedings  for  such  condemnation  shall 
be  stayed;  and  where  the  court  declares  that  the  owner  is  to  be  indemnified  by 
the  payment  of  costs  and  damages  for  the  detainer,  all  costs,  charges,  and  ex- 
penses incurred  by  such  owner  in  or  about  any  proceedings  for  the  condemna- 
tion of  such  ship  shall  be  added  to  the  costs  and  damages  payable  to  him  in 
respect  of  the  detention  of  the  ship. 

Nothing  in  this  section  contained  shall  apply  to  any  foreign  non-commissioned 
ship  despatched  from  any  part  of  Her  Majesty's  dominions  after  having  come 
within  them  under  stress  of  weather  or  in  the  course  of  a  peaceful  voyage,  and 
upon  which  ship  no  fitting  out  or  equipping  of  a  warlike  character  has  taken 
place  in  this  country. 

24.  Where  it  is  represented  to  any  local  authority,  as  defined  by  this  Act,  and 
such  local  authority  believes  the  representation,  that  there  is  a  reasonable  and 
probable  cause  for  believing  that  a  ship  within  Her  Majesty's  dominions  has 
been  or  is  being  built,  commissioned,  or  equipped  contrary  to  this  Act,  and  is 
about  to  be  taken  beyond  the  limits  of  such  dominions,  or  that  a  ship  is  about 
to  be  despatched  contrary  to  this  Act,  it  shall  be  the  duty  of  buch  local  authority 
to  detain  such  ship,  and  forthwith  to  communicate  the  fact  of  such  detention  to 
the  Secretary  of  State  or  chief  executive  authority. 

Upon  the  receipt  of  such  communication  the  Secretary  of  State  or  chief 
executive  authority  may  order  the  ship  to  be  released  if  he  thinks  there  is  no 
cause  for  detaining  her,  but  if  satisfied  that  there  is  reasonable  and  probable  cause 
for  believing  that  such  ship  was  built,  commissioned,  or  equipped,  or  intended 
to  be  despatched  in  contravention  of  this  Act,  he  shall  issue  his  warrant  stating 
that  there  is  reasonable  and  probable  cause  for  believing  as  aforesaid,  and  upon 
such  warrant  being  issued  further  proceedings  shall  be  had  as  in  cases  where  the 
seizure  or  detention  has  taken  place  on  a  warrant  issued  by  the  Secretary  of 
State  without  any  communication  from  the  local  authority. 

Where  the  Secretary  of  State  or  chief  executive  authority  orders  the  ship  to 
be  released  on  the  receipt  of  a  communication  from  the  local  authority  without 
issuing  his  warrant,  the  owner  of  the  ship  shall  be  indemnified  by  the  payment 
of  costs  and  damages  in  respect  of  the  detention  upon  application  to  the  Court 
of  Admiralty  in  a  summary  way  in  like  manner  as  he  is  entitled  to  be  indemni- 
fie4  where  the  Secretary  of  State  having  issued  his  warrant  under  this  Act  re- 
leases the  ship  before  any  application  is  made  by  the  owner  or  his  agent  to  the 
court  for  such  release. 


APPENDIX  199 

25.  The  Secretary  of  State  or  the  chief  executive  authority  may,  by  warrant, 
empower  any  person  to  enter  any  dockyard  or  other  place  within  Her  Majes- 
ty's dominions  and  inquire  as  to  the  destination  of  any  ship  which  may  appear 
to  him  to  be  intended  to  be  employed  in  the  naval  or  military  service  of  any 
foreign  State  at  war  with  a  friendly  State,  and  to  search  such  ship. 

26.  Any  powers  or  jurisdiction  by  this  Act  given  to  the  Secretary  of  State 
may  be  exercised  by  him  throughout  the  dominions  of  Her  Majesty,  and  such 
powers  and  jurisdiction  may  also  be  exercised  by  any  of  the  following  officers, 
in  this  Act  referred  to  as  the  chief  executive  authority,  within  their  respective 
jurisdictions ;  that  is  to  say, 

(1.)  In  Ireland  by  the  Lord  Lieutenant  or  other  the  chief  governor  or  gov- 
ernors of  Ireland  for  the  time  being,  or  the  chief  secretary  to  the  Lord  Lieu- 
tenant : 

(2.)  In  Jersey  by  the  Lieutenant  Governor: 

(3.)  In  Guernsey,  Alderney,  and  Sark,  and  the  dependent  islands  by  the  Lieu- 
tenant Governor: 

(4.)   In  the  Isle  of  Man  by  the  Lieutenant  Governor: 

(5.)   In  any  British  possession  by  the  Governor. 

A  copy  of  any  warrant  issued  by  a  Secretary  of  State  or  by  any  officer  au- 
thorised in  pursuance  of  this  Act  to  issue  such  warrant  in  Ireland,  the  Channel 
Islands,  or  the  Isle  of  Man  shall  be  laid  before  Parliament. 

27.  An  appeal  may  be  had  from  any  decision  of  a  Court  of  Admiralty  under 
this  Act  to  the  same  tribunal  and  in  the  same  manner  to  and  in  which  an  ap- 
peal may  be  had  in  cases  within  the  ordinary  jurisdiction  of  the  court  as  a  Court 
of  Admiralty. 

28.  Subject  to  the  provisions  of  this  Act  providing  for  the  award  of  damages 
in  certain  cases  in  respect  of  the  seizure  or  detention  of  a  ship  by  the  Court  of 
Admiralty  no  damages  shall  be  payable,  and  no  officer  or  local  authority  shall 
be  responsible,  either  civilly  or  criminally,  in  respect  of  the  seizure  or  detention 
of  any  ship  in  pursuance  of  this  Act. 

29.  The  Secretary  of  State  shall  not,  nor  shall  the  chief  executive  authority, 
be  responsible  in  any  action  or  other  legal  proceedings  whatsoever  for  any 
warrant  issued  by  him  in  pursuance  of  this  Act,  or  be  examinable  as  a  witness, 
except  at  his  own  request,  in  any  court  of  justice  in  respect  of  the  circumstances 
which  led  to  the  issue  of  the  warrant. 

Interpretation  Clause. 

30.  In  this  Act,  if  not  inconsistent  with  the  context,  the  following  terms  have 
the  meanings  hereinafter  respectively  assigned  to  them ;  that  is  to  say, 

"Foreign  state"  includes  any  foreign  prince,  colony,  province,  or  part  of  any 
province  or  people,  or  any  person  or  persons  exercising  or  assuming  to  exercise 
the  powers  of  government  in  or  over  any  foreign  country,  colony,  province, 
or  part  of  any  province  or  people : 

"Military  service"  shall  include  military  telegraphy  and  any  other  employ- 
ment whatever,  in  or  in  connexion  with  any  military  operation: 

"Naval  service"  shall,  as  respects  a  person,  include  service  as  a  marine,  em- 
ployment as  a  pilot  in  piloting  or  directing  the  course  of  a  ship  of  war  or  other 
ship  when  such  ship  of  war  or  other  sliip  is  being  used  in  any  military  or  naval 


200  NEUTRALITY  LAWS  OF  THE  UNITED  STATES 

Operation,  and  any  employment  whatever  on  board  a  ship  of  war,  transport, 
store  ship,  privateer,  or  ship  under  letters  of  marque;  and  as  respects  a  ship, 
include  any  user  of  a  ship  as  a  transport,  store  ship,  privateer  or  ship  under 
letters  of  marque: 

"United  Kingdom"  includes  the  Isle  of  Man,  the  Channel  Islands,  and  other 
adjacent  islands: 

"British  possession"  means  any  territory,  colony,  or  place  being  part  of  Her 
Majesty's  dominions,  and  not  part  of  the  United  Kingdom,  as  defined  by  this 

Act: 

"The  Secretary  of   State"  shall  mean  any  one  of  Her  Majesty's   Pnncipal 

Secretaries  of  State : 

"The  Governor"  shall  as  respects  India  mean  the  Governor-General  or  the 
Governor  of  any  presidency,  and  where  a  British  possession  consists  of  several 
constituent  colonies,  mean  the  Governor-General  of  the  whole  possession  or  the 
Governor  of  any  of  the  constituent  colonies,  and  as  respects  any  other  British 
possession  it  shall  mean  the  officer  for  the  time  being  administering  the  gov- 
ernment of  such  possession ;  also  any  person  acting  for  or  in  the  capacity  of  a 
Governor  shall  be  included  under  the  term  "Governor;" 

"Court  of  Admiralty"  shall  mean  the  High  Court  of  Admiralty  of  England 
or  Ireland,  the  Court  of  Session  of  Scotland,  or  any  Vice-AdmiraUy  Court  with- 
in Her  Majesty's  dominions: 

"Ship"  shall  include  any  description  of  boat,  vessel,  floating  battery,  or  float- 
ing craft;  also  any  description  of  boat,  vessel,  or  other  craft,  or  battery,  made  to 
move  either  on  the  surface  of  or  under  water,  or  sometimes  on  the  surface  of  and 
sometimes  under  water: 

"Building"  in  relation  to  a  ship  shall  include  the  doing  any  act  towards  or 
incidental  to  the  construction  of  a  ship,  and  all  words  having  relation  to  build- 
ing shall  be  construed  accordingly : 

"Equipping"  in  relation  to  a  ship  shall  include  the  furnishing  a  ship  with  any 
tackle,  apparel,  furniture,  provisions,  arms,  munitions,  or  stores,  or  any  other 
thing  which  is  used  in  or  about  a  ship  for  the  purpose  of  fitting  or  adapting  her 
for  the  sea  or  for  naval  service,  and  all  words  relating  to  equipping  shall  be  con- 
strued accordingly: 

"Ship  and  equipment"  shall  include  a  ship  and  everything  in  or  belonging  to 
a  ship: 

"Master"  shall  include  any  person  having  the  charge  or  command  of  a  ship. 

Repeal  of  Acts,  and  Saving  Clauses. 

31.  From  and  after  the  commencement  of  this  Act,  an  Act  passed  in  the  59th 
year  of  the  reign  of  His  late  Majesty  King  George  III,  chapter  69,  intituled 
"An  Act  to  prevent  the  enlisting  or  engagement  of  His  Majesty's  subjects  to  serve 
in  foreign  service,  and  the  fitting  out  or  equipping,  in  His  Majesty's  dominions, 
vessels  for  warlike  purposes,  without  His  Majesty's  licence,"  shall  be  repealed: 
Provided  that  such  repeal  shall  not  affect  any  penalty,  forfeiture,  or  other  pun- 
ishment incurred  or  to  be  incurred  in  respect  of  any  offence  committed  before 
this  Act  comes  into  operation,  nor  the  institution  of  any  investigation  or  legal 
proceeding,  or  any  other  remedy  for  enforcing  any  such  penalty,  forfeiture,  or 
punishment  as  aforesaid. 


APPENDIX  201 

32.  Nothing  in  this  Act  contained  shall  subject  to  forfeiture  any  commis- 
sioned ship  of  any  foreign  State,  or  to  give  to  any  British  court  over  or  in  re- 
spect of  any  ship  entitled  to  recognition  as  a  commissioned  ship  of  any  foreign 
State  any  jurisdiction  which  it  would  not  have  had  if  this  Act  had  not  passed. 

33.  Nothing  in  this  Act  contained  shall  extend  or  be  construed  to  extend  to 
subject  to  any  penalty  any  person  who  enters  into  the  military  service  of  any 
Prince,  State,  or  Potentate  in  Asia,  with  such  leave  or  license  as  is  for  the  time 
being  required  by  law  in  the  case  of  subjects  of  Her  Majesty  entering  into  the 
military  service  of  Princes,  States,  or  Potentates  in  Asia. 


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